EXHIBIT NO. 4.3
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
CHEMICAL BANKING CORPORATION
Under Section 245
of the
General Corporation Law of the State of Delaware
We, Walter V. Shipley, Chairman, and John B. Wynne, Secretary,
of Chemical Banking Corporation (the "Corporation") do hereby certify under the
seal of the Corporation as follows:
First: The name of the Corporation is Chemical Banking
Corporation; the Corporation was originally incorporated as Chemical New York
Corporation.
Second: The Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware in Dover,
Delaware, on the 28th day of October, 1968.
Third: This Amended and Restated Certificate of Incorporation
was duly adopted in accordance with Section 245 of the General Corporation Law
of the State of Delaware and amends the provisions of the Corporation's
Restated Certificate of Incorporation as heretofore restated, amended and
supplemented.
Fourth: The text of the Restated Certificate of Incorporation
of said Chemical Banking Corporation, as amended, is hereby amended and
restated to read in full, as follows:
FIRST. The name of the Corporation is
THE CHASE MANHATTAN CORPORATION
SECOND. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware. Without limiting in any manner the scope
and generality of the foregoing, the Corporation shall have the following
purposes and powers:
(1) To acquire by purchase, subscription, or otherwise,
and to receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge, or otherwise dispose of or deal in and
with any and all securities, as such term is hereinafter defined,
issued or created by any
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corporation, firm, organization, association or other entity, public
or private, whether formed under the laws of the United States of
America or of any state, commonwealth, territory, dependency or
possession thereof, or of any foreign country or of any political
subdivision, territory, dependency, possession or municipality
thereof, or issued or created by the United States of America or any
state or commonwealth thereof or any foreign country, or by any
agency, subdivision, territory, dependency, possession or municipality
of any of the foregoing, and as owner thereof to possess and exercise
all the rights, powers and privileges of ownership, including the
right to execute consents and vote thereon;
(2) to make, establish and maintain investments in
securities, and to supervise and manage such investments;
(3) to cause to be organized under the laws of the United
States of America or of any state, commonwealth, territory, dependency
or possession thereof, or of any foreign country or of any political
subdivision, territory, dependency, possession or municipality
thereof, one or more corporations, firms, organizations, associations
or other entities and to cause the same to be dissolved, wound up,
liquidated, merged or consolidated;
(4) to acquire by purchase or exchange, or by transfer to
or by merger or consolidation with the Corporation or any corporation,
firm, organization, association or other entity owned or controlled,
directly or indirectly, by the Corporation, or to otherwise acquire,
the whole or any part of the business, good will, rights or other
assets of any corporation, firm, organization, association or other
entity, and to undertake or assume in connection therewith the whole
or any part of the liabilities and obligations thereof, to effect any
such acquisition in whole or in part by delivery of cash or other
property, including securities issued by the Corporation, or by any
other lawful means;
(5) to make loans and give other forms of credit, with or
without security, and to negotiate and make contracts and agreements
in connection therewith;
(6) to aid by loan, subsidy, guaranty or in any other
lawful manner any corporation, firm, organization, association or
other entity of which any securities are in any manner directly or
indirectly held by the Corporation or in which the Corporation or any
such corporation, firm, organization, association or entity may be or
become otherwise interested; to guarantee the payment of dividends on
any stock issued by any such corporation, firm, organization,
association or entity; to guarantee or, with or without recourse
against any such corporation, firm, organization, association or
entity, to assume the payment
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of the principal of, or the interest on, any obligations issued or
incurred by such corporation, firm, organization, association or
entity; to do any and all other acts and things for the enhancement,
protection or preservation of any securities which are in any manner,
directly or indirectly, held, guaranteed or assumed by the
Corporation, and to do any and all acts and things designed to
accomplish any such purpose;
(7) to borrow money for any business, object or purpose
of the Corporation from time to time, without limit as to amount; to
issue any kind of evidence of indebtedness, whether or not in
connection with borrowing money, including evidences of indebtedness
convertible into stock of the Corporation, to secure the payment of
any evidence of indebtedness by the creation of any interest in any of
the property or rights of the Corporation, whether at that time owned
or thereafter acquired;
(8) to render service, assistance, counsel and advice to,
and to act as representative or agent in any capacity (whether
managing, operating, financial, purchasing, selling, advertising or
otherwise) of, any corporation, firm, organization, association or
other entity; and
(9) to engage in any commercial, financial, mercantile,
industrial, manufacturing, marine, exploration, mining, agricultural,
research, licensing, servicing, or agency business not prohibited by
law, and any, some or all of the foregoing.
The term "securities" as used in this Certificate of
Incorporation shall mean any and all notes, stocks, treasury stocks, bonds,
debentures, evidences of indebtedness, certificates of interest or
participation in any profit-sharing agreement, collateral-trust certificates,
preorganization certificates or subscriptions, transferable shares, investment
contracts, voting trust certificates, certificates of deposit for a security,
fractional undivided interests in oil, gas, or other mineral rights, or, in
general, any interests or instruments commonly known as "securities", or any
and all certificates of interest or participation in, temporary or interim
certificates for, receipts for, guaranties of, or warrants or rights to
subscribe to or purchase, any of the foregoing.
The purposes and powers specified in the foregoing paragraphs
shall, except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other paragraph in this
Certificate of Incorporation, but the purposes and powers specified in each of
the foregoing paragraphs of this Article THIRD shall be regarded as independent
purposes and powers.
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The Corporation shall possess and may exercise all powers and
privileges necessary or convenient to effect any or all of the foregoing
purposes, or to further any or all of the foregoing powers, and the enumeration
herein of any specific purposes or powers shall not be held to limit or
restrict in any manner the exercise by the Corporation of the general powers
and privileges now or hereafter conferred by the laws of the State of Delaware
upon corporations formed under the General Corporation Law of Delaware.
FOURTH. The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is NINE HUNDRED FIFTY
MILLION, of which TWO HUNDRED MILLION shares shall be shares of preferred stock
of the par value of $1 per share (hereinafter called "Preferred Stock") and
SEVEN HUNDRED FIFTY MILLION shares shall be shares of common stock of the par
value of $1 per share (hereinafter called "Common Stock").
Any amendment to this Certificate of Incorporation which shall
increase or decrease the authorized capital stock of the Corporation may be
adopted by the affirmative vote of the holders of capital stock representing
not less than a majority of the voting power represented by the outstanding
shares of capital stock of the Corporation entitled to vote.
The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, of the Preferred Stock
shall be as follows:
(1) The Board of Directors is expressly authorized at any
time, and from time to time, to provide for the issuance of shares of
Preferred Stock in one or more series, with such voting powers, full
or limited but not to exceed one vote per share, or without voting
powers and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed
in the resolution or resolutions providing for the issue thereof
adopted by the Board of Directors, and as are not stated and expressed
in this Certificate of Incorporation, or any amendment thereto,
including (but without limiting the generality of the foregoing) the
following:
(a) the designation of such series;
(b) the dividend rate of such series, the
conditions and dates upon which such dividends shall be
payable, the preference or relation which such dividends shall
bear to the dividends payable on any other class or classes or
on any other series of any class or classes of capital stock,
and whether such dividends shall be cumulative or
non-cumulative;
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(c) whether the shares of such series shall be
subject to redemption by the Corporation, and, if made subject
to such redemption, the times, prices and other terms and
conditions of such redemption;
(d) the terms and amount of any sinking fund
provided for the purchase or redemption of the shares of such
series;
(e) whether or not the shares of such series
shall be convertible into or exchangeable for shares of any
other class or classes or of any other series of any class or
classes of capital stock of the Corporation, and, if provision
be made for conversion or exchange, the times, prices, rates,
adjustments and other terms and conditions of such conversion
or exchange;
(f) the extent, if any, to which the holders of
the shares of such series shall be entitled to vote as a class
or otherwise with respect to the election of the directors or
otherwise; provided, however, that in no event shall any
holder of any series of Preferred Stock be entitled to more
than one vote for each share of such Preferred Stock held by
him;
(g) the restrictions, if any, on the issue or
reissue of any additional Preferred Stock;
(h) the rights of the holders of the shares of
such series upon the dissolution of, or upon the distribution
of assets of, the Corporation.
(2) Except as otherwise required by law and except for
such voting powers with respect to the election of directors or other
matters as may be stated in the resolutions of the Board of Directors
creating any series of Preferred Stock, the holders of any such series
shall have no voting power whatsoever.
(3) The voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's Junior Participating Preferred Stock are set forth in
Appendix A hereto and are incorporated herein by reference.
(4) The voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's Adjustable Rate Cumulative Preferred Stock, Series L are
set forth in Appendix B hereto and are incorporated herein by
reference.
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(5) The voting powers, designations, preferences, and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's 10.96% Preferred Stock are set forth in Appendix C
hereto and are incorporated herein by reference.
(6) The voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's 8-3/8% Preferred Stock are set forth in Appendix D
hereto and are incorporated herein by reference.
(7) The voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's 7.92% Cumulative Preferred Stock are set forth in
Appendix E hereto and are incorporated herein by reference.
(8) The voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's 7.58% Cumulative Preferred Stock are set forth in
Appendix F hereto and are incorporated herein by reference.
(9) The voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
Corporation's 7-1/2% Cumulative Preferred Stock are set forth in
Appendix G hereto and are incorporated herein by reference.
FIFTH. The by-laws may be made, altered, amended or repealed
by the Board of Directors. The books of the Corporation (subject to the
provisions of the laws of the State of Delaware) may be kept outside of the
State of Delaware at such places as from time to time may be designated by the
Board of Directors.
SIXTH. (1) To the fullest extent that the General
Corporation Law of the State of Delaware as it exists on the date
hereof or as it may hereafter be amended permits the limitation or
elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director.
(2) The Corporation shall have the power to indemnify any
director, officer, employee or agent of the Corporation or any other
person who is serving at the request of the Corporation in any such
capacity with another corporation, partnership, joint venture, trust
or other enterprise (including, without limitation, any employee
benefit plan) to the fullest extent permitted by the General
Corporation
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Law of the State of Delaware as it exists on the date hereof or as it
may hereafter be amended, and any such indemnification may continue as
to any person who has ceased to be a director, officer, employee or
agent and may inure to the benefit of the heirs, executors and
administrators of such a person.
(3) By action of its Board of Directors, notwithstanding
any interest of the directors in the action, the Corporation may
purchase and maintain insurance, in such amounts as the Board of
Directors deems appropriate, to protect any director, officer,
employee or agent of the Corporation or any other person who is
serving at the request of the Corporation in any such capacity with
another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan)
against any liability asserted against him or incurred by him in any
such capacity or arising out of his status as such (including, without
limitation, expenses, judgments, fines and amounts paid in settlement)
to the fullest extent permitted by the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it may
hereafter be amended, and whether or not the Corporation would have
the power or would be required to indemnify any such person under the
terms of any agreement or by-law or the General Corporation Law of the
State of Delaware. For purposes of this paragraph (3), "fines" shall
include any excise taxes assessed on a person with respect to any
employee benefit plan.
SEVENTH. (1) Any action required or permitted to be taken by
the holders of Common Stock of the Corporation must be effected at a
duly called annual or special meeting of the stockholders of the
Corporation and may not be effected by any consent in writing.
(2) Whenever the vote of holders of shares of any class
or series other than Common Stock at a meeting thereof is required or
permitted to be taken for or in connection with any corporate action
by any provision of the General Corporation Law of the State of
Delaware, the meeting and vote of such stockholders may be dispensed
with if such action is taken with the written consent of such holders
representing not less than a majority of the voting power of all the
capital stock of such class or series entitled to be voted upon such
action if a meeting were held; provided that in no case shall the
written consent be by such holders having less than the minimum
percentage of the vote required by statute for such action, and
provided that prompt notice is given in writing to all such
stockholders entitled to vote thereon of the taking of corporate
action without a meeting and by less than unanimous written consent.
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(3) Election of directors need not be by ballot unless
the by-laws so provide.
EIGHTH. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, we have signed this certificate and caused
the corporate seal of the Corporation to be hereunto affixed this _______ day
of ____________ __, 199_.
---------------------------
Walter V. Shipley
Chairman
[Corporate Seal]
Attest:
------------------------
John B. Wynne
Secretary
Appendix A
CERTIFICATE OF DESIGNATIONS
OF
JUNIOR PARTICIPATING PREFERRED STOCK
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors of Chemical Banking
Corporation, a Delaware corporation (hereinafter called the "Corporation"), at
meetings duly convened and held on April 13, 1989 and _______ __, 1995, at
which a quorum was present and acting throughout:
"RESOLVED that, pursuant to authority conferred upon the Board
of Directors by the Certificate of Incorporation of the Corporation
(hereinafter called the "Certificate of Incorporation"), the Board of
Directors hereby provides for the issuance of a series of Preferred
Stock of the Corporation to consist of 7,500,000 shares, and hereby
fixes the voting powers, designation, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of
such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
"(a) Designation. The designation of the series
of Preferred Stock created by this resolution shall be "Junior
Participating Preferred Stock" (hereinafter called this
"Series") and the number of shares constituting this Series is
seven million five hundred thousand (7,500,000).
"(b) Dividends.
"(1) 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
shares of this Series with respect to dividends, the
holders of shares of this Series shall be entitled to
receive, when and as declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on March
31, June 30, September 30
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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 first issuance of a share or
fraction of a share of this Series, in an amount per
share (rounded to the nearest cent) equal to the
greater of (A) $2.00 or (B) subject to the provision
for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in
kind) of all noncash 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 the Common Stock, par value $12.00 per
share, of the Corporation (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 this Series. In
the event the Corporation shall at any time after
April 13, 1989 (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 this Series 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.
"(2) The Corporation shall declare a
dividend or distribution on this Series as provided
in clause (A) of the preceding paragraph (1)
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 Dividend Payment Date
and the next subsequent Quarterly Dividend Payment
Date, a dividend of $2.00 per share on this Series
shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
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"(3) Dividends shall begin to accrue and
be cumulative on outstanding shares of this Series
from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of this
Series 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, 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 this Series 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 this Series 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 this Series entitled to receive payment of
a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to
the date fixed for the payment thereof.
"(4) No full dividends shall be declared
or paid or set apart for payment on the Preferred
Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period
unless full cumulative dividends have been or
contemporaneously are declared and a sum sufficient
for the payment thereof set apart for such payment on
this Series for all dividend payment periods
terminating on or prior to the date of payment of
such full cumulative dividends. When dividends are
not paid in full, as aforesaid, upon the shares of
this Series and any other Preferred Stock ranking on
a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any
other Preferred Stock ranking on a parity as to
dividends with this Series shall be declared pro rata
so that the amount of dividends declared per share on
this Series and such other Preferred Stock shall in
all cases bear to each other the same ratio that
accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each
other. Holders of shares of this Series shall not be
entitled to any dividends, whether payable in
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cash, property or stock, in excess of full cumulative
dividends, as herein provided, on this Series. No
interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or
payments on this Series which may be in arrears.
"(5) So long as any shares of this
Series are outstanding, no dividend (other than a
dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends and
upon liquidation and other than as provided in
paragraph (4) of this Section (b)) shall be declared
or paid or set aside for payment or other
distribution declared or made upon the Common Stock
or upon any other stock ranking junior to or on a
parity with this Series as to dividends or upon
liquidation, nor shall any Common Stock or any other
stock of the Corporation ranking junior to or on a
parity with this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the
redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation) unless,
in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been
paid for all past dividend payment periods.
"(c) Redemption.
"(1) The shares of this Series shall be
redeemable only as expressly provided in this Section
(c). The Corporation, at its option, may redeem
shares of this Series, as a whole or in part, at any
time or from time to time, at a redemption price
equal to, subject to the provisions for adjustment
hereinafter set forth, 100 times the "current per
share market price" of the Common Stock on the date
of the mailing of the notice of redemption, plus
accrued and unpaid dividends to the date fixed for
such redemption. 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 to which
holders of shares of this Series were otherwise
entitled immediately prior to such event under the
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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.
The "current per share market price" on any date
shall be deemed to be the average of the closing
price per share of such Common Stock for the 10
consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date. The closing
price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked
prices, regular way, in either case as reported in
the principal consolidated transaction reporting
system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on
the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system
with respect to securities listed or admitted to
trading on the principal national securities exchange
on which the Common Stock is listed or admitted to
trading or, if the Common Stock is not listed or
admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted
the average of the high bid and low asked prices in
the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other
system then in use or, if on any such date the Common
Stock is not quoted by any such organization, the
average of the closing bid and asked prices as
furnished by a professional market maker making a
market in the Common Stock selected by the Board of
Directors of the Corporation. If on such date no
such market maker is making a market in the Common
Stock, the fair value of the Common Stock on such
date as determined in good faith by the Board of
Directors of the Corporation shall be used. The term
"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common
Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock
is not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday on which banking institutions in
the State of New York are not authorized or obligated
by law or executive order to close.
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"(2) In the event that fewer than all
the outstanding shares of this Series are to be
redeemed, the number of shares to be redeemed shall
be determined by the Board of Directors and the
shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of
Directors or by any other method which may be
determined by the Board of Directors in its sole
discretion to be equitable.
"(3) In the event the Corporation shall
redeem shares of this Series, notice of such
redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more
than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at
such holder's address as the same appears on the
stock register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the
number of shares of this Series to be redeemed and,
if fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates
for such shares are to be surrendered for payment of
the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on the
close of business on such redemption date.
"(4) Notice having been mailed as
aforesaid, from and after the redemption date (unless
default shall be made by the Corporation in providing
money for the payment of the redemption price)
dividends on the shares of this Series so called for
redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all
rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the
certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the
notice shall so state), such shares shall be redeemed
by the Corporation at the redemption price aforesaid.
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.
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"(5) Any shares of this Series which
shall at any time have been redeemed shall, after
such redemption, have the status of authorized but
unissued shares of Preferred Stock without
designation as to series until such shares are once
more designated as part of a particular series by the
Board of Directors.
"(6) Notwithstanding the foregoing
provisions of this Section (c), if any dividends on
this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of
this Series are simultaneously redeemed, and the
Corporation shall not purchase or otherwise acquire
any shares of this Series; provided, however, that
the foregoing shall not prevent the purchase or
acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to
holders of all outstanding shares of this Series.
"(d) Conversion or Exchange. The holders of
shares of this Series shall not have any rights to convert
such shares into or exchange such shares for shares of any
other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
"(e) Voting. The shares of this Series shall not
have any voting powers either general or special, except that
if at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends on the
Preferred Stock shall exist, the number of directors
constituting the Board of Directors of the Corporation shall
be increased by two, and the holders of the Preferred Stock of
all series (whether or not the holders of such series of
Preferred Stock would be entitled to vote for the election of
directors if such default in preference dividends did not
exist), shall have the right at such meeting, voting together
as a single class without regard to series, to the exclusion
of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships. Such
right shall continue until there are no dividends in arrears
upon the Preferred Stock. Each director elected by the
holders of shares of Preferred Stock (herein called a
"Preferred Director"), shall continue to serve as such
director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a
default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed
except by, the vote of the holders of record of the
outstanding shares of Preferred Stock
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voting together as a single class without regard to series, at
a meeting of the stockholders, or of the holders of shares of
Preferred Stock called for the purpose. So long as a default
in any preference dividends on the Preferred Stock shall
exist, (A) any vacancy in the office of a Preferred Director
may be filled (except as provided in the following clause (B))
by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (B) in the case of
the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of
Preferred Stock voting together as a single class without
regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes
hereof, to be a Preferred Director. Whenever the term of
office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of
Directors constituting the Board of Directors of the
Corporation shall be reduced by two. For the purposes hereof,
a "default in preference dividends" on the Preferred Stock
shall be deemed to have occurred whenever the amount of
accrued dividends upon any series of the Preferred Stock shall
be equivalent to six full quarter-yearly dividends or more,
and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all
shares of Preferred Stock of each and every series then
outstanding shall have been paid to the end of the last
preceding quarterly dividend period.
"(f) Liquidation Rights.
"(1) Upon the dissolution, liquidation
or winding up of the Corporation, the holders of the
shares of this Series shall be entitled to receive
out of the assets of the Corporation, before any
payment or distribution shall be made on the Common
Stock or on any other class of stock ranking junior
to the Preferred Stock upon liquidation, the amount
of $100 per share, plus a sum equal to all dividends
(whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final
distribution (the "Liquidation Preference").
Following the payment of the full amount of
the Liquidation Preference, no additional
distributions shall be made to the holders of shares
of this Series unless, prior thereto, the holders of
shares of Common Stock shall have received an amount
per share (the "Common
A-8
Adjustment") equal to the quotient obtained by
dividing (i) the Liquidation Preference by (ii) 100
(as appropriately adjusted as set forth in paragraph
(2) 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 Liquidation Preference and the
Common Adjustment, in respect of all outstanding
shares of Junior Participating Preferred Stock and
Common Stock, respectively, holders of this Series
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 1 with respect to such
Junior Participating Preferred Stock and Common
Stock, on a per share basis, respectively.
"(2) 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.
"(3) The sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all the
property and assets of the Corporation shall be
deemed a voluntary dissolution, liquidation or
winding up of the Corporation for the purposes of
this Section (f), but the merger or consolidation of
the Corporation into or with any other corporation or
the merger or consolidation of any other corporation
into or with the Corporation, shall not be deemed to
be a dissolution, liquidation or winding up,
voluntarily or involuntarily, for the purposes of
this Section (f).
"(4) After the payment to the holders of
the shares of this Series of the full preferential
amounts provided for in this Section (f), the
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holders of this Series as such shall have no right
or claim to any of the remaining assets of the
Corporation.
"(5) In the event the assets of the
Corporation available for distribution to the holders
of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to
pay in full all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section
(f), no such distribution shall be made on account of
any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding
up unless proportionate distributive amounts shall be
paid on account of the shares of this Series,
ratably, in proportion to the full distributable
amounts for which holders of all such parity shares
are respectively entitled upon such dissolution,
liquidation or winding up.
"(g) For purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to
rank:
"(1) prior to the shares of this Series,
either as to dividends or upon liquidation, if the
holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or
priority to the holders of shares of this Series;
"(2) on a parity with shares of this
Series, either as to dividends or upon liquidation,
whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share
or sinking fund provisions, if any, be different from
those of this Series, if the holders of such stock
shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or
liquidation prices, without preference or priority,
one over the other, as between the holders of such
stock and the holders of shares of this Series; and
"(3) junior to shares of this Series,
either as to dividends or upon liquidation, if the
holders of shares of this Series shall be entitled
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to receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or
priority to the holders of shares of such class or
classes."
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Appendix B
CERTIFICATE OF DESIGNATIONS
OF
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES L
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors of Chemical Banking
Corporation, a Delaware corporation (hereinafter called the "Corporation"), at
a meeting duly convened and held on April 28, 1987, at which a quorum was
present and acting throughout:
"RESOLVED that, pursuant to authority conferred upon the Board
of Directors by the Certificate of Incorporation of the Corporation
(hereinafter called the "Certificate of Incorporation"), the Board of
Directors hereby provides for the issuance of a series of Preferred
Stock of the Corporation to consist of 34,692,402 shares, and hereby
fixes the voting powers, designation, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of
such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
"(a) Designation. The designation of the series of
Preferred Stock created by this resolution shall be
"Adjustable Rate Cumulative Preferred Stock, Series C"
(hereinafter called this "Series") and the number of shares
constituting this Series is Thirty-four million six hundred
ninety-two thousand four hundred eighty-two (34,692,482).
Shares of this Series shall have a stated value of $12 per
share. The number of authorized shares of this Series may be
reduced by further resolution duly adopted by the Board of
Directors of the Corporation or the Executive Committee
thereof and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of
Delaware stating that such reduction has been so authorized,
but the number of authorized shares of this Series shall not
be increased.
"(b) Dividend Rates.
"(1) Dividend rates on the shares of this
Series shall be: (i) for the period (the "Initial
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Dividend Period") from May 1, 1987, to and including
June 30, 1987, at 7.65% per annum of the stated value
thereof and (ii) for each quarterly dividend period
(hereinafter referred to as a "Quarterly Dividend
Period", and the Initial Dividend Period or any
Quarterly Dividend Period being hereinafter
individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods")
thereafter, which quarterly dividend Periods shall
commence on January 1, April 1, July 1 and October 1
in each year and shall end on, and include the day
next preceding the first day of the next quarterly
dividend period, at a rate per annum of the stated
value thereof equal to the Effective Rate (as defined
in Paragraph (2) of this section (b)) in respect of
such quarterly dividend Period. Such dividends shall
be cumulative from the date of original issue of such
shares and shall be payable, when and as declared by
the Board of Directors or by a committee of said
Board duly authorized by said Board to declare such
dividends on March 31, June 30, September 30 and
December 31 of each year, commencing June 30, 1987.
Each such dividend shall be paid to the holders of
record of shares of this Series as they appear on the
stock register of the Corporation on such record
date, not exceeding 30 days preceding the payment
date thereof, as shall be fixed by the Board of
Directors of the Corporation or by a committee of
said Board of Directors duly authorized to fix such
date. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any
time, without reference to any regular dividend
payment date, to holders of record on such date, not
exceeding 45 days preceding the payment date thereof
as may be fixed by the Board of Directors of the
Corporation or by a committee of said Board of
Directors duly authorized to fix such date.
"(2) Except as provided below in this
paragraph, the "Effective Rate" for any Quarterly
Dividend Period shall be (a) 1% less than (b) the
highest of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant
Maturity Rate (each as hereinafter defined) for such
Dividend Period. In the event that the Corporation
determines in good faith that for any reason
"(i) any one of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and
the Thirty Year Constant Maturity Rate cannot
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be determined for any Quarterly Dividend
Period, then the Effective Rate for such
Dividend Period shall be 1% less than the
higher of whichever two of such Rates can be
so determined;
"(ii) only one of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and
the Thirty Year Constant Maturity Rate can be
determined for any Quarterly Dividend Period,
then the Effective Rate for such Dividend
Period shall be 1% less than whichever such
Rate can be so determined; or
"(iii) none of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate can be
determined for any Quarterly Dividend Period,
then the rate in effect for the preceding
Dividend Period (or, if the rate being so
continued is for the Initial Dividend Period,
a rate .5% higher than such rate) shall be
continued for such Dividend Period.
Anything herein to the contrary notwithstanding, the Effective Rate
for any Quarterly Dividend Period shall in no event be less than
5-1/2% per annum or greater than 11-1/2% per annum.
"(3) Except as provided below in this paragraph, the
"Treasury Bill Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate if
only one such rate shall be published during the relevant Calendar
Period as provided below) for three-month U.S. Treasury bills, as
published weekly by the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") during the Calendar Period
immediately prior to the last ten calendar days of March, June,
September or December, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum market discount rate during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per
annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S.
Treasury bills, as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that a per annum market
discount rate for three-month U.S. Treasury bills shall not
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be published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per
annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for all of the U.S.
Treasury bills then having maturities of not less than 80 nor more
than 100 days, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish such
rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason no such
U.S. Treasury bill rates are published as provided above during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the per annum market discount rates
based upon the closing bids during such Calendar Period for each of
the issues of marketable noninterest-bearing U.S. Treasury securities
with a maturity of not less than 80 nor more than 100 days from the
date of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the
Treasury Bill Rate for any Quarterly Dividend Period as provided above
in this paragraph, the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the per annum market discount rates
based upon the closing bids during such Calendar Period for each of
the issues of marketable interest-bearing U.S. Treasury securities
with a maturity of not less than 80 nor more than 100 days, as chosen
and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to
the Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
"(4) Except as provided below in this paragraph, the "Ten
Year Constant Maturity Rate" for each Quarterly Dividend Period shall
be the arithmetic average of the two most recent weekly per annum Ten
Year Average Yields (or the one weekly per annum Ten Year Average
Yield, if only one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the last
ten calendar days of March, June, September or December, as the case
may be, prior to the Quarterly Dividend Period for which the dividend
rate on this Series is being determined. In the event that the
B-4
Federal Reserve Board does not publish such a weekly per annum Ten
Year Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield, if
only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that a
per annum Ten Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average
yields to maturity (or the one weekly average yield to maturity, if
only one such yield shall be published during the relevant Calendar
Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities) then having maturities of not less than eight nor more
than twelve years, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board shall not
publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any
reason the Corporation cannot determine the Ten Year Constant Maturity
Rate for any Quarterly Dividend Period as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the per annum average yields
to maturity based upon the closing bids during such Calendar Period
for each of the issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) with a
final maturity date not less than eight nor more than twelve years
from the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at
least three recognized dealers in U.S. Government securities selected
by the Corporation.
"(5) Except as provided below in this paragraph, the "Thirty
Year Constant Maturity Rate" for each Quarterly Dividend Period shall
be the arithmetic average of the two most recent weekly per annum
Thirty Year Average Yields (or the one weekly per annum Thirty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published weekly by
the Federal Reserve Board during the Calendar Period immediately prior
to the last ten calendar days of March, June, September or December,
as the case may be, prior to
B-5
the Quarterly Dividend Period for which the dividend rate on this
Series is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Thirty Year Average
Yield during such Calendar Period, then the Thirty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average
of the two most recent weekly per annum Thirty Year Average Yields (or
the one weekly per annum Thirty Year Average Yield if only one such
Yield shall be published during the relevant Calendar Period as
provided below), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that a per annum
Thirty Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Thirty Year
Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average
yields to maturity (or the one weekly average yield to maturity, if
only one such yield shall be published during the relevant Calendar
Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities) then having maturities of not less than twenty-eight nor
more than thirty years, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board shall not
publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any
reason the Corporation cannot for any Quarterly Dividend Period as
provided above in this paragraph, then the Thirty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average
of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities) with a final maturity date not less than
twenty-eight nor more than thirty years from the date of each such
quotation, as chosen and quoted daily for each business day in New
York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three recognized
dealers in U.S. Government securities selected by the Corporation.
"(6) The Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate shall each be rounded
to the nearest five hundredths of a percentage point.
"(7) The Effective Rate with respect to each Quarterly
Dividend Period will be calculated as promptly as practicable by the
Corporation according to the appropriate method described herein. The
mathematical accuracy of each
B-6
such calculation will be confirmed in writing by independent
accountants of recognized standing. The Corporation will cause each
Effective Rate to be published in a newspaper of general circulation
in New York City prior to the commencement of the new Quarterly
Dividend Period to which it applies and will cause notice of such
Effective Rate to be enclosed with the dividend payment checks next
mailed to the holders of shares of this Series.
"(8) For purposes of this Section (b), the term
"(i) "Calendar Period" shall mean 14
calendar days;
"(ii) "Special Securities" shall mean
securities which can, at the option of the
holder, be surrendered at face value in
payment of any Federal estate tax or which
provide tax benefits to the holder and are
priced to reflect such tax benefits or which
were originally issued at a deep or
substantial discount;
"(iii) "Ten Year Average Yield" shall
mean the average yield to maturity for
actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to
constant maturities of ten years); and
"(iv) "Thirty Year Average Yield"
shall mean the average yield to maturity for
actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to
constant maturities of 30 years).
"(9) No full dividends shall be declared or paid or set apart
for payment on the Preferred Stock of any series ranking, as to
dividends, on a parity with or junior to this Series for any period
unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment
thereof set apart for such payment on this Series for all dividend
payment periods terminating on or prior to the date of payment of such
full cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the shares of this Series and any other Preferred
Stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other Preferred
Stock ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per share
on this Series and such other Preferred Stock shall in all cases bear
to each other the same ratio that accrued dividends per share on the
shares of this Series and such other Preferred Stock bear to each
other. Holders of shares of this Series
B-7
shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein
provided, on this Series. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on this Series which may be in arrears.
"(10) So long as any shares of this Series are outstanding,
no dividend (other than a dividend in Common Stock or in any other
stock ranking junior to this Series as to dividends and upon
liquidation and other than as provided in paragraph (9) of this
Section (b)) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock or any other
stock of the Corporation ranking junior to or on a parity with this
Series as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of
any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to this Series as
to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall
have been paid for all past dividend payment periods.
"(11) Dividends payable on this Series for each full
Quarterly Dividend Period (other than the Initial Dividend Period)
shall be computed by annualizing the Effective Rate and dividing by
four. Dividends payable on this Series for any period less than a
full Quarterly Dividend Period, and for the Initial Dividend Period,
shall be computed on the basis of a 360-day year of 30-day months and
the actual number of days elapsed in the period for which payable.
"(c) Redemption
"(1) The shares of this Series shall be redeemable only as
expressly provided in this Section (c). On and after May 1, 1992, the
Corporation, at its option, may redeem shares of this Series, as a
whole or in part, at any time or from time to time at a redemption
price of (i) in the case of any redemption on a redemption date
occurring on or after May 1, 1992, and prior to May 1, 1997, $12.36
per share and (ii) in the case of any redemption on a redemption date
occurring on or after May 1, 1997, $12 per share, plus, in each case,
accrued and unpaid dividends thereon to the date fixed for redemption.
"(2) In the event that fewer than all the outstanding shares
of this Series are to be redeemed, the number of shares to be redeemed
shall be determined by the Board of
B-8
Directors and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of Directors or by any
other method which may be determined by the Board of Directors in its
sole discretion to be equitable.
"(3) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior
to the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on the close of business on such redemption date.
"(4) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation
in providing money for the payment of the redemption price), dividends
on the shares of this Series so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer if the Board of Directors of the
Corporation shall so require and the notice shall so state), such
shares shall be redeemed by the Corporation at the redemption price
aforesaid. 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.
"(5) Any shares of this Series which shall at any time have
been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without designation
as to series until such shares are once more designated as part of a
particular series by the Board of Directors.
"(6) Notwithstanding the foregoing provisions of this Section
(c), if any dividends on this Series are in arrears, no shares of this
Series shall be redeemed unless all outstanding shares of this Series
are simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided,
B-9
however, that the foregoing shall not prevent the purchase or
acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding
shares of this Series.
"(d) Conversion or Exchange. The holders of shares of this
Series shall not have any rights to convert such shares into or exchange such
shares for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
"(e) Voting. The shares of this Series shall not have any
voting powers either general or special, except that
"(1) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the consent of the
holders of at least 66-2/3% of all of the shares of this Series at the
time outstanding, given in person or by proxy, either in writing or by
a vote at a meeting called for the purpose at which the holders of
shares of this Series 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 Certificate of
Incorporation or of any certificate amendatory thereof or supplemental
thereto (including any Certificate of Designation and Terms or any
similar document relating to any series of Preferred Stock) so as to
affect adversely the preferences, rights, powers or privileges of this
Series;
"(2) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the consent of the
holders of at least 66-2/3% of all of the shares of this Series and
all other series of Preferred Stock ranking on a parity with shares of
this Series, either as to dividends or upon liquidation, at the time
outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of
shares of this Series and such other series of Preferred Stock shall
vote together as a single class without regard to series, shall be
necessary for authorizing, effecting or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of this Series as to dividends
or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into
or evidencing the right to purchase any such prior shares;
"(3) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of
the holders of at least a majority of all of the shares of this Series
and all other series of Preferred
B-10
Stock ranking on a parity with this Series, either as to dividends or
upon liquidation, at the time outstanding, given in person or by
proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of this Series and such other
series of Preferred Stock shall vote together as a single class
without regard to series, shall be necessary for authorizing,
effecting or validating either of the following:
"(a) any increase of the authorized amount of the
Preferred Stock, or the creation or authorization of any
shares of any other class of stock of the Corporation ranking
on a parity with the shares of this Series as to dividends or
upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such parity shares, or the
creation or authorization of any obligation or security
convertible into or evidencing the right to purchase any such
parity shares; or
"(b) the sale, lease or conveyance of all or
substantially all the property or business of the Corporation
or the merger or consolidation of the Corporation into or with
any other Corporation; provided, however, that no such vote or
consent of the holders of shares of this Series and such other
series of Preferred Stock, voting as a class without regard to
series, shall be required for the merger or consolidation of
another corporation into or with the Corporation if none of
the preferences, rights, powers or privileges of this Series
or such other series of Preferred Stock or the holders thereof
will be adversely affected thereby and there shall not be
authorized or outstanding after such merger or consolidation
any class of stock or other securities (except such stock or
securities of the Corporation as may have been authorized or
outstanding immediately preceding such merger or
consolidation) ranking prior to the shares of this Series and
such other series of Preferred Stock as to dividends or upon
liquidation; and provided further, however, that there shall
not be authorized or outstanding after such merger or
consolidation more than 75,000,000 shares of Preferred Stock
or any class of stock or other securities (except such stock
or securities of the Corporation as may have been authorized
or outstanding immediately preceding such merger or
consolidation) ranking on a parity with the shares of this
Series as to dividends or upon liquidation, in which case the
vote specified by this paragraph (3) shall be required;
"(4) If at the time of any annual meeting of stockholders for
the election of directors a default in preference dividends on the
Preferred Stock shall exist, the
B-11
number of directors constituting the Board of Directors of the
Corporation shall be increased by two, and the holders of the
Preferred Stock of all series (whether or not the holders of such
series of Preferred Stock would be entitled to vote for the election
of directors if such default in preference dividends did not exist),
shall have the right at such meeting, voting together as a single
class without regard to series, to the exclusion of the holders of
Common Stock, to elect two directors of the Corporation to fill such
newly created directorships. Such right shall continue until there
are no dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (herein called a
"Preferred Director"), shall continue to serve as such director for
the full term for which he shall have been elected, notwithstanding
that prior to the end of such term a default in preference dividends
shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of
the outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for the purpose.
So long as a default in any preference dividends on the Preferred
Stock shall exist, (A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause
(B)) by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (B) in the case of the
removal of any Preferred Director, the vacancy may be filled by the
vote of the holders of the outstanding shares of Preferred Stock,
voting together as a single class without regard to series, at the
same meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preferred Director shall be
deemed, for all purposes hereof, to be a Preferred Director. Whenever
the term of office of the Preferred Directors shall end and a default
in preference dividends shall nc longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be
reduced by two. For the purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed to have occurred
whenever the amount of accrued dividends upon any series of the
Preferred Stock shall be equivalent to six full quarter-yearly
dividends or more, and, having so occurred, such default shall be
deemed to exist thereafter until, but only until, all accrued
dividends on all shares of Preferred Stock of each and every series
then outstanding shall have been paid to the end of the last preceding
quarterly dividend period.
"(f) Liquidation Rights.
"(1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be
entitled to receive out of the assets of the
B-12
Corporation, before any payment or distribution shall be made on the
Common Stock or on any other class of stock ranking junior to the
Preferred Stock upon liquidation, the amount of $12 per share, plus a
sum equal to all dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon to the date of final distribution.
"(2) The sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all the property and assets of the Corporation shall be
deemed a voluntary dissolution, liquidation or winding up of the
Corporation for the purposes of this Section (f), but the merger or
consolidation of the Corporation into or with any other corporation or
the merger or consolidation of any other corporation into or with the
Corporation, shall not be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of this Section
(f).
"(3) After the payment to the holders of the shares of this
Series of the full preferential amounts provided for in this Section
(f), the holders of this Series as such shall have no right or claim
to any of the remaining assets of the Corporation.
"(4) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph (1)
of this Section (f), no such distribution shall be made on account of
any shares of any other class or series of Preferred Stock ranking on
a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the shares of this Series, ratably, in
proportion to the full distributable amounts for which holders of all
such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
"(5) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to paragraph (1) of this Section
(f) before any payment shall be made to the holders of any class of
capital stock of the Corporation ranking junior upon liquidation to
this Series.
"(g) For purposes of this resolution, any stock of any class
or classes of the Corporation shall be deemed to rank:
B-13
"(1) prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or classes
shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the
holders of shares of this Series;
"(2) on a parity with shares of this Series, either as to
dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share
or sinking fund provisions, if any, be different from those of this
Series, if the holders of such stock shall be entitled to the receipt
of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in proportion to
their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of
such stock and the holders of shares of this Series; and
"(3) junior to shares of this Series, either as to dividends
or upon liquidation, if such class shall be Common Stock or if the
holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or classes."
B-14
Appendix C
CERTIFICATE OF DESIGNATIONS
OF
10.96% PREFERRED STOCK
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
CHEMICAL BANKING CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolution was duly adopted by the Board of
Directors of the Corporation at a meeting duly held and convened on July 14,
1991, at which a quorum was present and acting throughout:
"RESOLVED, that pursuant to authority conferred upon the Board
of Directors by the Certificate of Incorporation of the Corporation,
as amended (the "Certificate of Incorporation"), the Board of
Directors hereby provides for the issuance of 4,000,000 shares of a
series of Preferred Stock, $1 par value, of the Corporation ranking on
a parity with the series of Preferred Stock designated as the
Corporation's "Adjustable Rate Cumulative Preferred Stock", the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series B",
the Corporation's "Adjustable Rate Cumulative Preferred Stock, Series
C", the Corporation's "10-3/4% Cumulative Preferred Stock", the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series E",
the Corporation's "Adjustable Rate Cumulative Preferred Stock, Series
F," and the Corporation's "10% Convertible Preferred Stock", and the
designations, preferences and privileges, relative, participating,
optional and other special rights, and qualifications, limitations and
restrictions of all 4,000,000 shares of this series, in addition to
those set forth in the Certificate of Incorporation of the Corporation
are hereby fixed as follows:
"(a) Designation. The designation of this series
shall be 10.96% Preferred Stock (hereinafter referred to as
this "Series") and the number of shares constituting this
Series shall be 4,000,000 shares. Shares of this Series shall
have a stated value of $25 per share. The number of
authorized shares of this Series may be reduced by further
resolution duly adopted by the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of
Directors and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State
C-1
of Delaware stating that such reduction has been so authorized
(but not below the number of shares of this Series then
outstanding), but the number of authorized shares of this
Series shall not be increased.
"(b) Dividend Rights.
"(1) Dividends shall be payable on the shares of
this Series for the Initial Dividend Period (as defined below)
and each quarterly dividend period (a "Quarterly Dividend
Period") thereafter (the Initial Dividend Period and each such
subsequent Quarterly Dividend Period being hereinafter
referred to as a "Dividend Period" and collectively referred
to as "Dividend Periods"), which Quarterly Dividend Periods
shall commence on March 31, June 30, September 30 and December
31 in each year, commencing with the first such date to occur
after the effective time of the merger of the Corporation with
Manufacturers Hanover Corporation (the "Effective Time"), and
shall end on and include the day next preceding the first day
of the next Quarterly Dividend Period, at a rate per annum of
the stated value thereof equal to 10.96%. The Initial Dividend
Period is the period commencing on the most recent date next
preceding the Effective Time on which a dividend was paid on
the 10.96% Preferred Stock of Manufacturers Hanover
Corporation (or commencing on the date of the Effective Time
if such date was such a dividend payment date) and shall end
on and include the date next preceding the first day of the
next Quarterly Dividend Period; provided, however, that in the
event the Effective Time shall occur after the record date for
the payment of a regular quarterly dividend on the 10.96%
Preferred Stock of Manufacturers Hanover Corporation but prior
to the payment date for such dividend, then the Initial
Dividend Period shall be the first Quarterly Dividend Period
as described in the preceding sentence. Dividends shall be
cumulative from the date on which the Initial Dividend Period
commences and shall be payable, when, as and if declared by
the Board of Directors or by the Preferred Stock Committee of
the Board of Directors, on March 31, June 30, September 30 and
December 31 in each year, commencing with such date that next
follows the end of the Initial Dividend Period. Each such
dividend shall be paid to the holders of record of shares of
this Series as they appear on the stock register of the
Corporation on such record date, not exceeding 45 days
preceding the payment date thereof, as shall be fixed by the
Board of Directors of the Corporation or by the Preferred
Stock Committee of the Board of Directors. Dividends on
account of arrears for any past Dividend Periods may be
declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on
C-2
such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors of the
Corporation or by the Preferred Stock Committee of the Board
of Directors.
"(2) Dividends payable on this Series for any period
greater or less than a Quarterly Dividend Period, including
the Initial Dividend Period, shall be computed on the basis of
a 360-day year consisting of twelve 30-day months. Dividends
payable on this Series for each Quarterly Dividend Period
shall be computed by annualizing the Dividend Rate and
dividing by four.
"(3) No full dividends shall be declared or paid or
set apart for payment on the Preferred Stock or any series
ranking, as to dividends, on a parity with or junior to this
Series for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for
such payment on this Series for all Dividend Periods
terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the shares of this Series and any other series
of Preferred Stock ranking on a parity as to dividends with
this Series, all dividends declared upon shares of this Series
and any other series of Preferred Stock ranking on a parity as
to dividends with this Series shall be declared pro rata so
that the amount of dividends declared per share on this Series
and such other series of Preferred Stock shall in all cases
bear to each other the same ratio that accrued and unpaid
dividends per share on the shares of this Series and such
other series of Preferred Stock bear to each other. Holders of
shares of this Series shall not be entitled to any dividend,
whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No
interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this
Series which may be in arrears.
"(4) So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common
Stock of the Corporation (the "Common Stock") or in any other
stock ranking junior to this Series as to dividends and upon
liquidation and other than as provided in Section (3) of this
Section (b)) shall be declared or paid or set aside for
Payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to or on a parity
with this Series as to dividends or upon liquidation, nor
shall any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with this
C-3
Series as to dividends or upon liquidation 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
unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all
past Dividend Periods.
"(c) Redemption.
"(1) Shares of this Series are not redeemable prior
to June 30, 2000. On or after such date, the Corporation may
elect to redeem the shares of this Series, as a whole or in
part, any time or from time to time at a redemption price of
$25 per share, plus accrued and unpaid dividends thereon to
the redemption date. In the event the Corporation shall elect
to redeem shares of this Series, the Corporation shall give
notice to the holders of record of shares of this Series being
so redeemed, not less than 30 nor more than 60 days prior to
such redemption, by first class mail, postage prepaid, at
their addresses as shown on the stock registry books of the
Corporation that said shares are being redeemed, provided that
without limiting the obligation of the Corporation hereunder
to give the notice provided in this Section (c)(1), the
failure of the Corporation to give such notice shall not
invalidate any corporate action by the Corporation. Each such
notice shall state: (i) the redemption date; (ii) the number
of shares of this Series to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number
of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates
for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on the redemption date.
"(2) In the event that fewer than all the
outstanding shares of this Series are to be redeemed, the
number of shares to be redeemed shall be determined by the
Board of Directors of the Corporation or the Preferred Stock
Committee of the Board of Directors and the shares to be
redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors of the Corporation or
the Preferred Stock Committee of the Board of Directors or by
any other method as may be determined by the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors in its sole discretion to be
equitable provided that such method satisfies any applicable
C-4
requirements of any securities exchange on which this Series
is listed.
"(3) Notice having been mailed as aforesaid, from
and after the applicable redemption date (unless default shall
be made by the Corporation in providing money for the payment
of the redemption price), dividends on the shares of this
Series to be redeemed on such redemption date shall cease to
accrue, and said shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive
from the Corporation the redemption price) shall cease. Upon
surrender of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors shall so require and the notice
shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. 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.
"(4) Any shares of this Series which shall at any
time have been redeemed shall, after such redemption, have the
status of authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once
more designated as part of a particular series by the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors.
"(5) Notwithstanding the foregoing provisions of
this Section (c), if any dividends on this Series are in
arrears, no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously redeemed,
and the Corporation shall not purchase or otherwise acquire
any shares of this Series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of
shares of this Series pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of
this Series.
"(d) Conversion. The holders of shares of this
Series shall not have any rights to convert such shares into
shares of any other class or series of capital stock of the
Corporation.
"(e) Voting Rights. The shares of this Series of
Preferred Stock shall not have any voting powers either
general or special, except that:
C-5
"(1) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
consent of the holders of at least 66 2/3% of all of the
shares of this Series at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting
called for that purpose at which the holders of shares of this
Series 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 Certificate of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar documents relating
to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
"(2) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
consent of the holders of at least 66 2/3% of all of the
shares of this Series and all other series of Preferred Stock
ranking on a parity with shares of this Series, either as to
dividends or upon liquidation, at the time outstanding, given
in person or by proxy, either in writing or by a vote at a
meeting called for that purpose at which the holders of shares
of this Series and such other series of Preferred Stock shall
vote together as a single class without regard to series,
shall be necessary for authorizing, effecting or validating
the creation, authorization or issue of any shares of any
class of stock of the Corporation ranking prior to the shares
of this Series as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation
into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares;
"(3) If at the time of any annual meeting of
stockholders for the election of directors a default in
preference dividends on the Preferred Stock shall exist, the
number of directors constituting the Board of Directors of the
Corporation shall be increased by two, and the holders of the
Preferred Stock of all series shall have the right at such
meeting, voting together as a single class without regard to
series, to the exclusion of the holders of Common Stock, to
elect two directors of the Corporation to fill such newly
created directorships. Such right shall continue until there
are no dividends in arrears upon the Preferred Stock. Each
director elected by the holders of shares of Preferred Stock
(herein called a "Preferred
C-6
Director"), shall continue to serve as such director for the
full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default
in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except
by, the vote of the holders of record of the outstanding
shares of Preferred Stock, voting together as a single class
without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for that
purpose. So long as a default in any preference dividends on
the Preferred Stock shall exist, (A) any vacancy in the office
of Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by
the remaining Preferred Director and filed with the
Corporation, and (B) in the case of the removal of any
Preferred Director, the vacancy may be filled by the vote of
the holders of the outstanding shares of Preferred Stock,
voting together as a single class without regard to series, at
the same meeting at which such removal shall be voted. Each
director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a
Preferred Director. Whenever the term of office of the
Preferred Directors shall end and a default in preference
dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall
be reduced by two. For the purposes hereof, a "default in
preference dividends" on the Preferred Stock shall be deemed
to have occurred whenever the amount of accrued dividends upon
any series of the Preferred Stock shall be equivalent to six
full quarter-yearly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter
until, but only until, all accrued dividends on all shares of
Preferred Stock of each and every series then outstanding
shall have been paid to the end of the last preceding Dividend
Period.
"(f) Liquidation Rights.
"(1) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the holders of
the shares of this Series shall be entitled to receive and to
be paid out of the assets of the Corporation available for
distribution to its stockholders, before any payment or
distribution shall be made on the Common Stock or on any other
class of stock ranking junior to this Series upon liquidation,
a liquidation preference in the amount of $25 per share of
this Series, plus accrued and unpaid dividends thereon.
C-7
"(2) After the payment to the holders of the shares
of this Series of the full amount of the liquidating
distribution to which they are entitled under this Section
(f), the holders of this Series as such shall have no right or
claim to any of the remaining assets of the Corporation.
"(3) If, upon any voluntary or involuntary
dissolution, liquidation, or winding up of the Corporation,
the amounts payable with respect to the liquidation preference
of the shares of this Series and any other shares of stock of
the Corporation ranking as to any such distribution on a
parity with the shares of this Series are not paid in full,
the holders of the shares of this Series and of such other
shares will share ratably in any such distribution of assets
of the Corporation in proportion to the full respective
liquidation preference to which they are entitled.
"(4) Neither the sale of all or substantially all of
the property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to
be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section (f).
"(5) Upon the dissolution, liquidation or winding
up of the Corporation, the holders of shares of this Series
then outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled
pursuant to Section (1) of this Section (f) before any payment
shall be made to the holders of any class of capital stock of
the Corporation ranking junior to this Series upon
liquidation.
"(g) Ranking. For purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
"(1) prior to the shares of this Series, either as
to dividends or upon liquidation, if the holders of such class
or classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or
priority to the holders of shares of this Series; and
"(2) on a parity with shares of this Series, either
as to dividends or upon liquidation, whether or not the
dividend rates, dividend payment dates or
C-8
redemption or liquidation prices per share or sinking fund
provision, if any, be different from those of this Series, if
the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may
be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority, one over
the other, as between the holders of such stock and the
holders of shares of this Series; and
"(3) junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be Common
Stock or if the holders of shares of this Series shall be
entitled to receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to
the holders of shares of such class or classes."
C-9
Appendix D
CERTIFICATE OF DESIGNATIONS
OF
8-3/8% PREFERRED STOCK
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
CHEMICAL BANKING CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolutions were duly adopted by the Board of
Directors of the Corporation on March 17, 1992 and by the Preferred Stock
Committee of the Board of Directors on May 20, 1992, respectively, pursuant to
authority conferred upon the Board of Directors by the provisions of the
Certificate of Incorporation of the Corporation which authorize the issuance of
up to 200,000,000 shares of preferred stock, $1 par value (the "Preferred
Stock"), and pursuant to authority conferred upon the Preferred Stock Committee
of the Board of Directors by Section 141(c) of the General Corporation Law of
the State of Delaware, by the By-Laws of the Corporation and by the resolutions
of the Board of Directors adopted at a meeting duly convened and held on March
17, 1992:
1. The Board of Directors on March 17, 1992 adopted the
following resolutions authorizing a Preferred Stock Committee of the Board of
Directors to act on behalf of the Board of Directors in connection with the
issuance of the Preferred Stock:
"RESOLVED that the Board of Directors of Chemical Banking
Corporation (the "Board of Directors") deems it advisable and in the
best interests of Chemical Banking Corporation (the "Corporation") to
provide for the issuance and sale by the Corporation from time to time
of shares of preferred stock ($1 par value), in one or more series,
having an aggregate liquidation preference over the Corporation's
common stock, $1 par value (the "Common Stock"), not in excess of
$800,000,000, with such voting powers, designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions as are set forth in, or
are determined in accordance with, these resolutions (the "Preferred
Shares");
"RESOLVED that the Board of Directors deems it in the best
interests of the Corporation to delegate to the Preferred Stock Committee those
powers and duties set forth below;
"RESOLVED that the Preferred Stock Committee may, without the
further action of the Board of Directors, from time
D-1
to time authorize the issuance and sale from time to time of one or more series
of Preferred Shares for cash or other property, as shall be determined by the
Preferred Stock Committee, subject to the limitations above, and any such
Preferred Shares may be sold through agents, through underwriters, through
dealers and directly to purchasers, in one or more offerings registered under
the Securities Act of 1933 (the "Act") or in transactions not required to be
registered under the Act, all as shall be determined by the Preferred Stock
Committee; and any such issuance and sale of Preferred Shares, including the
issuance from time to time of any warrants for such Preferred Shares, common or
preferred stock of the Corporation into which any series of Preferred Shares
may be convertible or exchangeable and the issuance and sale from time to time
of Depositary Shares (as hereinafter defined; it being intended that, unless
the context shall otherwise require, when used in these resolutions the term
"Preferred Shares" shall also include any warrants or Depositary Shares related
thereto) related to the Preferred Shares, be and hereby is authorized and
approved;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to act on behalf and in the stead of the Board of
Directors in connection with the issuance of one or more series of the
Preferred Shares and any common or preferred stock into which such Preferred
Shares may be convertible or exchangeable and, in connection therewith, is
hereby authorized, to the fullest extent permitted by the Delaware General
Corporation Law as it now exists or is hereafter amended, to determine the
price at which the Preferred Shares of each such series will be sold by the
Corporation, to declare dividends payable on the Preferred Shares, to reserve
for issuance on the books of the Corporation or otherwise a sufficient number
of shares of any common or preferred stock of the Corporation into which any
series of the Preferred Shares may be convertible or exchangeable and to
determine the designation, preferences and privileges, the relative,
participating, optional or other special rights, and the qualifications,
limitations and restrictions thereof;
"RESOLVED that, without limiting the generality of the
preceding resolution, the Preferred Stock Committee is hereby expressly
authorized:
"(i) to determine whether the Preferred Shares will be
issued in one or more series and the number of shares of any such
series;
"(ii) to fix the dividend rate or rates of such shares
and/or the methods of determining dividends and the dates on which
dividends shall be payable;
"(iii) to determine whether dividends of any series of
Preferred Shares shall be cumulative or noncumulative and,
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if cumulative, the dates from which dividends shall commence to
cumulate;
"(iv) to determine the conversion or exchange provisions,
if any, of the shares of any series of the Preferred Shares, including
without limitation, the class and series of capital stock of the
Corporation into which such shares shall be convertible or
exchangeable;
"(v) to determine whether the Corporation shall elect to
offer (a) warrants for such Preferred Shares ("Warrants") or (b)
depositary shares evidenced by depositary receipts, each representing
a fraction (to be determined by the Preferred Stock Committee) of a
share of a particular series of the Preferred Shares ("Depositary
Shares"), which Preferred Shares will be issued and deposited with a
depositary, in each case, in lieu of offering full shares of such
series of the Preferred Shares;
"(vi) to fix the liquidation preference of the shares of
any series of the Preferred Shares, subject to the limitation that the
aggregate liquidation preference of all the Preferred Shares issued
shall not exceed $800,000,000;
"(vii) to determine whether the shares of any series of the
Preferred Shares shall be subject to redemption, optional or mandatory
or pursuant to a sinking fund, and, if such series shall be subject to
redemption, the redemption provisions of such series; and
"(viii) to fix or determine any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions thereof;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to authorize, approve and take such other action as is
deemed advisable in connection with the issuance of one or more series of the
Preferred Shares, including, without limitation, the following:
"(i) selecting the underwriters, dealers and agents, if any,
to or through which the Preferred Shares will be sold and offered;
"(ii) approving the form and substance, and the execution and
delivery, of any underwriting agreement, agency agreement, placement
agreement or other agreement to be entered into by the Corporation in
connection with the issuance and sale of the Preferred Shares,
including, without limitation, setting the amount of any underwriting
discounts and other items constituting underwriters' compensation and
any discounts and commissions allowed or paid to dealers or agents;
D-3
"(iii) selecting the bank or trust company which will act as
depositary if Depositary Shares are offered and approving the form and
substance, and the execution and delivery, of any deposit agreement to
be entered into by the Corporation with such depositary; and
"(iv) appointing a registrar and transfer agent for the
registration, transfer and exchange of the Preferred Shares and
appointing a dividend disbursing agent for the Preferred Shares;
"RESOLVED that for each series of Preferred Shares a
certificate shall be prepared and filed on behalf of the Corporation with the
Secretary of State of the State of Delaware pursuant to Section 151 of the
General Corporation Law of the State of Delaware (a "Certificate of
Designations"); that each such Certificate of Designations be in such form as
is approved by action of the Board of Directors or the Preferred Stock
Committee; and that the proper officers of the Corporation be and hereby are
authorized to execute and file each such Certificate of Designations pursuant
to the General Corporation Law of the State of Delaware;"
2. The Board of Directors on March 17, 1992 adopted the
following resolution fixing the voting rights of the Preferred Stock authorized
by the preceding resolutions:
"RESOLVED that the Certificate of Designations for each series of the
Preferred Shares shall provide that the shares of such series shall not have
any voting powers either general or special, except that:
"(i) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of
the holders of at least 66-2/3% of all of the shares of any series at
the time outstanding, given in person or by proxy, either in writing
or by a vote at a meeting called for the purpose at which the holders
of shares of such series 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
Certificate of Incorporation or of any certificate amendatory thereof
or supplemental thereto (including any Certificate of Designations or
any similar document relating to any series of Preferred Stock) so as
to affect adversely the preferences, rights, powers or privileges of
such series;
"(ii) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of
the holders of at least 66-2/3% of all of the shares of any such
series and all other series of Preferred Stock ranking on a parity
with shares of such series, either as to dividends or upon
liquidation, at the time
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outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of
shares of such series and such other series of Preferred Stock shall
vote together as a single class without regard to series, shall be
necessary for authorizing, effecting or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of such series as to dividends
or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into
or evidencing the right to purchase any such prior shares; and
"(iii) If at the time of any annual meeting of the
Corporation's stockholders for the election of directors there is a
default in preference dividends on the Preferred Stock, the number of
directors constituting the Board of Directors of the Corporation shall
be increased by two, and the holders of the Preferred Stock of all
series (whether or not the holders of such series of Preferred Stock
would be entitled to vote for the election of directors if such
default in preference dividends did not exist), shall have the right
at such meeting, voting together as a single class without regard to
series, to the exclusion of the holders of Common Stock, to elect two
directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon
the Preferred Stock. Each director elected by the holders of shares
of Preferred Stock (a "Preferred Director"), shall continue to serve
as such director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a default
in preference dividends shall cease to exist. Any Preferred Director
may be removed by, and shall not be removed except by, the vote of the
holders of record of the outstanding shares of Preferred Stock, voting
together as a single class without regard to series, at a meeting of
the Corporation's stockholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long as a default in any
preference dividends on the Preferred Stock shall exist, (a) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (b)) by an instrument in writing
signed by the remaining Preferred Director and filed with the
Corporation and (b) in the case of the removal of any Preferred
Director, the vacancy may be filled by the vote of the holders of the
outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes hereof,
to be a Preferred Director. Whenever the term of office of the
Preferred Directors shall end and a default in preference dividends
shall no longer exist, the
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number of directors constituting the Board of Directors of the
Corporation shall be reduced by two. For the purposes hereof, a
"default in preference dividends" on the Preferred Stock shall be
deemed to have occurred whenever the amount of accrued dividends upon
any series of the Preferred Stock shall be equivalent to six full
quarter-yearly dividends or more, and, having so occurred, such
default shall be deemed to exist thereafter until, but only until, all
accrued dividends on all shares of Preferred Stock of each and every
series then outstanding shall have been paid to the end of the last
preceding dividend period."
3. The Preferred Stock Committee of the Board of Directors on
May 20, 1992, pursuant to the authority conferred upon the Preferred Stock
Committee of the Board of Directors by Section 141(c) of the General
Corporation Law of the State of Delaware, by Section 3.03 of the By-Laws of the
Corporation and by the resolutions of the Board of Directors set forth above,
adopted the following resolution:
"RESOLVED that the issue of up to 14,000,000 shares of 8-3/8%
Preferred Stock, $1 par value, of the Corporation ranking on a parity with the
series of Preferred Stock of the Corporation designated as the Corporation's
"Adjustable Rate Cumulative Preferred Stock", the Corporation's "Adjustable
Rate Cumulative Preferred Stock, Series B", the Corporation's "Adjustable Rate
Cumulative Preferred Stock, Series C", the Corporation's "10-3/4% Cumulative
Preferred Stock", the Corporation's "Adjustable Rate Cumulative Preferred
Stock, Series E", the Corporation's "Adjustable Rate Cumulative Preferred
Stock, Series F", the Corporation's "10.96% Preferred Stock" and the
Corporation's "10% Convertible Preferred Stock" is hereby authorized and the
designation, preferences and privileges, relative, participating, optional and
other special rights, and qualifications, limitations and restrictions of all
14,000,000 shares of this Series, in addition to those set forth in the
Certificate of Incorporation of the Corporation and, with respect to voting
rights, in the resolutions of the Board of Directors of the Corporation adopted
on March 17, 1992, are hereby fixed as follows:
"1. Designation. The designation of this Series shall be
8-3/8% Preferred Stock (hereinafter referred to as the "Series") and
the number of shares constituting this Series shall be Fourteen
Million (14,000,000). Shares of this Series shall have a stated value
of $25. The number of authorized shares of this Series may be reduced
by further resolution duly adopted by the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of Directors
and by the filing of a certificate pursuant to the provisions of the
General Corporation Law of the State of Delaware stating that such
reduction has been so authorized, but the number of authorized shares
of this Series shall not be increased.
D-6
"2. Dividends. (a) Dividends shall be payable on the shares
of this Series: (i) for the period (the "Initial Dividend Period")
from the date of original issue of shares of this Series to and
including September 30, 1992, and (ii) for each quarterly dividend
period thereafter (the Initial Dividend Period and each quarterly
dividend period thereafter being hereinafter individually referred to
as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which quarterly Dividend Periods shall commence on January
1, April 1, July 1 and October 1 in each year, commencing October 1,
1992 and shall end on and include the day next preceding the first day
of the next Dividend Period, at a rate per annum of the stated value
thereof equal to 8-3/8% (the "Dividend Rate"). Dividends shall be
cumulative from such date of original issue and shall be payable, when
and as declared by the Board of Directors or by the Preferred Stock
Committee of the Board of Directors, on March 31, June 30, September
30 and December 31 of each year, commencing on September 30, 1992.
Each such dividend shall be paid to the holders of record of shares of
this Series as they appear on the stock register of the Corporation on
such record date, not exceeding 45 days preceding the payment date
thereof, as shall be fixed by the Board of Directors of the
Corporation or by the Preferred Stock Committee of the Board of
Directors. Dividends on account of arrears for any past Dividend
Periods may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date, not
exceeding 45 days preceding the payment date thereof, as may be fixed
by the Board of Directors of the Corporation or by the Preferred Stock
Committee of the Board of Directors.
"(b) Dividends payable on this Series for any period greater
or less than a full Dividend Period, including the Initial Dividend
Period, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and the actual number of days elapsed in the
period. Dividends payable on this Series for each full Dividend
Period shall be computed by annualizing the Dividend Rate and dividing
by four.
"(c) No full dividends shall be declared or paid or set apart
for payment on the Preferred Stock of any series ranking, as to
dividends, on a parity with or junior to this Series for any period
unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment
thereof set apart for such payment on this Series for all Dividend
Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the shares of this Series and any other series of
Preferred Stock ranking on a parity as to dividends with this Series,
all dividends declared upon
D-7
shares of this Series and any other series of Preferred Stock ranking
on a parity as to dividends with this Series shall be declared pro
rata so that the amount of dividends declared per share on this Series
and such other Preferred Stock shall in all cases bear to each other
the same ratio that accrued and unpaid dividends per share on the
shares of this Series and such other Preferred Stock bear to each
other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of
full cumulative dividends, as herein provided, on this Series. No
interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series which may
be in arrears.
"(d) So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends and upon liquidation and
other than as provided in paragraph (c) of this Section 2) shall be
declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or upon any other stock ranking
junior to or on a parity with this Series as to dividends or upon
liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this Series as to
dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall
have been paid or declared and set aside for payment for all past
Dividend Periods.
"3. Redemption. (a) The shares of this Series are not
redeemable prior to June 1, 1997. The Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or
from time to time on or after June 1, 1997, at a redemption price of
$25 per share, plus accrued and unpaid dividends thereon to the date
fixed for redemption.
"(b) In the event that fewer than all the outstanding shares
of this Series are to be redeemed, the number of shares to be redeemed
shall be determined by the Board of Directors of the Corporation or
the Preferred Stock Committee of the Board of Directors and the shares
to be redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors of the Corporation or the
Preferred Stock Committee of the Board of Directors or by any other
method as may be determined by the Board of Directors of the
Corporation or the Preferred Stock
D-8
Committee of the Board of Directors in its sole discretion to be
equitable, provided that such method satisfies any applicable
requirements of any securities exchange on which this Series is
listed.
"(c) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 or more than 60 days prior to
the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on the redemption date.
"(d) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation
in providing money for the payment of the redemption price) dividends
on the shares of this Series so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of Directors
shall so require and the notice shall so state), such shares shall be
redeemed by the Corporation at the redemption price aforesaid. 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.
"(e) Any shares of this Series which shall at any time have
been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without designation
as to series until such shares are once more designated as part of a
particular series by the Board of Directors of the Corporation or the
Preferred Stock Committee of the Board of Directors.
"(f) Notwithstanding the foregoing provisions of this Section
3, if any dividends on this Series are in arrears, no shares of this
Series shall be redeemed unless all outstanding shares of this Series
are simultaneously redeemed, and the Corporation shall not purchase or
D-9
otherwise acquire any shares of this Series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of shares
of this Series pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of this Series.
"4. Conversion. The holders of shares of this Series
shall not have any rights to convert such shares into shares of any other class
or series of capital stock of the Corporation.
"5. Liquidation Rights.
"(a) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the holders of the
shares of this Series shall be entitled to receive and to be paid out
of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution shall be made on the
Common Stock or on any other class of stock ranking junior to this
Series upon liquidation, the amount of $25 per share, plus accrued and
unpaid dividends thereon.
"(b) After the payment to the holders of the shares of this
Series of the full preferential amounts provided for in this Section
5, the holders of this Series as such shall have no right or claim to
any of the remaining assets of the Corporation.
"(c) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the amounts payable
with respect to the stated value of the shares of this Series and any
other shares of stock of the Corporation ranking as to any such
distribution on a parity with the shares of this Series are not paid
in full, the holders of the shares of this Series and of such other
shares will share ratably in any such distribution of assets of the
Corporation in proportion to the full respective stated values to
which they are entitled.
"(d) Neither the sale of all or substantially all the
property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other corporation or
the merger or consolidation of any other corporation into or with the
Corporation, shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of this Section
5.
"(e) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to paragraph (a) of this Section 5
before any payment shall be made to the holder of any class of capital
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stock of the Corporation ranking junior to this Series upon
liquidation.
"6. Ranking. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
"(a) prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or classes
shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the
holders of shares of this Series;
"(b) on a parity with shares of this Series, either as to
dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share
or sinking fund provisions, if any, be different from those of this
Series, if the holders of such stock shall be entitled to the receipt
of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, without
preference or priority, one over the other, as between the holders of
such stock and the holders of shares of this Series; and
"(c) junior to shares of this Series, either as to dividends
or upon liquidation, if such class shall be Common Stock or if the
holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or classes.
"7. Voting Rights. The shares of this Series shall have
the voting rights set forth in the resolutions of the Board of Directors of the
Corporation adopted on March 17, 1992."
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Appendix E
CERTIFICATE OF DESIGNATIONS
OF
7.92% CUMULATIVE PREFERRED STOCK
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
CHEMICAL BANKING CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolutions were duly adopted by the Board of
Directors of the Corporation on March 17, 1992 and by the Preferred Stock
Committee of the Board of Directors on September 10, 1992, respectively,
pursuant to authority conferred upon the Board of Directors by the provisions
of the Certificate of Incorporation of the Corporation which authorize the
issuance of up to 200,000,000 shares of preferred stock, $1 par value (the
"Preferred Stock"), and pursuant to authority conferred upon the Preferred
Stock Committee of the Board of Directors by Section 141(c) of the General
Corporation Law of the State of Delaware, by the By-Laws of the Corporation and
by the resolutions of the Board of Directors adopted at a meeting duly convened
and held on March 17, 1992:
1. The Board of Directors, on March 17, 1992 adopted the
following resolutions authorizing a Preferred Stock Committee of the Board of
Directors to act on behalf of the Board of Directors in connection with the
issuance of the Preferred Stock:
"RESOLVED that the Board of Directors of Chemical Banking
Corporation (the "Board of Directors") deems it advisable and in the
best interests of Chemical Banking Corporation (the "Corporation") to
provide for the issuance and sale by the Corporation from time to time
of shares of preferred stock ($1 par value), in one or more series,
having an aggregate liquidation preference over the Corporation's
common stock, $1 par value (the "Common Stock"), not in excess of
$800,000,000, with such voting powers, designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions, as are set forth in, or
are determined in accordance with, these resolutions (the "Preferred
Shares");
"RESOLVED that the Board of Directors deems it in the best
interests of the Corporation to delegate to the Preferred Stock
Committee those powers and duties set forth below;
E-1
"RESOLVED that the Preferred Stock Committee may, without the
further action of the Board of Directors, from time to time authorize
the issuance and sale from time to time of one or more series of
Preferred Shares for cash or other property, as shall be determined by
the Preferred Stock Committee, subject to the limitations above, and
any such Preferred Shares may be sold through agents, through
underwriters, through dealers and directly to purchasers, in one or
more offerings registered under the Securities Act of 1933 (the "Act")
or in transactions not required to be registered under the Act, all as
shall be determined by the Preferred Stock Committee; and any such
issuance and sale of Preferred Shares, including the issuance from
time to time of any warrants for such Preferred Shares, common or
preferred stock of the Corporation into which any series of Preferred
Shares may be convertible or exchangeable and the issuance and sale
from time to time of Depositary Shares (as hereinafter defined; it
being intended that, unless the context shall otherwise require, when
used in these resolutions the term "Preferred Shares" shall also
include any warrants or Depositary Shares related thereto) related to
the Preferred Shares, be and hereby is authorized and approved;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to act on behalf and in the stead of the
Board of Directors in connection with the issuance of one or more
series of the Preferred Shares and any common or preferred stock into
which such Preferred Shares may be convertible or exchangeable and, in
connection therewith, is hereby authorized, to the fullest extent
permitted by the Delaware General Corporation Law as it now exists or
is hereafter amended, to determine the price at which the Preferred
Shares of each such series will be sold by the Corporation, to declare
dividends payable on the Preferred Shares, to reserve for issuance on
the books of the Corporation or otherwise a sufficient number of
shares of any common or preferred stock of the Corporation into which
any series of the Preferred Shares may be convertible or exchangeable
and to determine the designation, preferences and privileges, the
relative, participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof;
"RESOLVED that, without limiting the generality of the
preceding resolution, the Preferred Stock Committee is hereby
expressly authorized:
"(i) to determine whether the Preferred Shares
will be issued in one or more series and the number of shares
of any such series;
E-2
"(ii) to fix the dividend rate or rates of such
shares and/or the methods of determining dividends and the
dates on which dividends shall be payable;
"(iii) to determine whether dividends of any series
of Preferred Shares shall be cumulative or noncumulative and,
if cumulative, the dates from which dividends shall commence
to cumulate;
"(iv) to determine the conversion or exchange
provisions, if any, of the shares of any series of the
Preferred Shares, including without limitation, the class and
series of capital stock of the Corporation into which such
shares shall be convertible or exchangeable;
"(v) to determine whether the Corporation shall
elect to offer (a) warrants for such Preferred Shares
("Warrants") or (b) depositary shares evidenced by depositary
receipts, each representing a fraction (to be determined by
the Preferred Stock Committee) of a share of a particular
series of the Preferred Shares ("Depositary Shares"), which
Preferred Shares will be issued and deposited with a
depositary, in each case, in lieu of offering full shares of
such series of the Preferred Shares;
"(vi) to fix the liquidation preference of the
shares of any series of the Preferred Shares, subject to the
limitation that the aggregate liquidation preference of all
the Preferred Shares issued shall not exceed $800,000,000;
"(vii) to determine whether the shares of any series
of the Preferred Shares shall be subject to redemption,
optional or mandatory or pursuant to a sinking fund, and, if
such series shall be subject to redemption, the redemption
provisions of such series; and
"(viii) to fix or determine any additional dividend,
liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions thereof;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to authorize, approve and take such other
action as is deemed advisable in connection with the issuance of one
or more series of the Preferred Shares, including, without limitation,
the following:
"(i) Selecting the underwriters, dealers and
agents, if any, to or through which the Preferred Shares will
be sold and offered;
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"(ii) approving the form and substance, and the
execution and delivery, of any underwriting agreement, agency
agreement, placement agreement or other agreement to be
entered into by the Corporation in connection with the
issuance and sale of the Preferred Shares, including, without
limitation, setting the amount of any underwriting discounts
and other items constituting underwriters' compensation and
any discounts and commissions allowed or paid to dealers or
agents;
"(iii) selecting the bank or trust company which
will act as depositary if Depositary Shares are offered and
approving the form and substance, and the execution and
delivery, of any deposit agreement to be entered into by the
Corporation with such depositary; and
"(iv) appointing a registrar and transfer agent for
the registration, transfer and exchange of the Preferred
Shares and appointing a dividend disbursing agent for the
Preferred Shares;
"RESOLVED that for each series of Preferred Shares a
certificate shall be prepared and filed on behalf of the Corporation
with the Secretary of State of the State of Delaware pursuant to
Section 151 of the General Corporation Law of the State of Delaware (a
"Certificate of Designations"); that each such Certificate of
Designations be in such form as is approved by action of the Board of
Directors or the Preferred Stock Committee; and that the proper
officers of the Corporation be and hereby are authorized to execute
and file each such Certificate of Designations pursuant to the General
Corporation Law of the State of Delaware".
2. The Board of Directors on March 17, 1992 adopted the
following resolution fixing the voting rights of the Preferred Stock authorized
by the preceding resolutions:
"RESOLVED that the Certificate of Designations for each series
of the Preferred Shares shall provide that the shares of such series
shall not have any voting powers either general or special, except
that:
"(i) Unless the vote or consent of the holders of
a greater number of shares shall then be required by law, the
consent of the holders of at least 66-2/3% of all of the
shares of any series at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of such
series shall vote together as a separate class, shall be
necessary for authorizing, effecting or validating the
amendment, alteration or repeal of any of the
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provisions of the Certificate of Incorporation or of any
certificate amendatory thereof or supplemental thereto
(including any Certificate of Designations or any similar
document relating to any series of Preferred Stock) so as to
affect adversely the preferences, rights, powers or privileges
of such series;
"(ii) Unless the vote or consent of the holders of
a greater number of shares shall then be required by law, the
consent of the holders of at least 66-2/3% of all of the
shares of any such series and all other series of Preferred
Stock ranking on a parity with shares of such series, either
as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at
a meeting called for the purpose at which the holders of
shares of such series and such other series of Preferred Stock
shall vote together as a single class without regard to
series, shall be necessary for authorizing, effecting or
validating the creation, authorization or issue of any shares
of any class of stock of the Corporation ranking prior to the
shares of such series as to dividends or upon liquidation, or
the reclassification of any authorized stock of the
Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security
convertible into or evidencing the right to purchase any such
prior shares; and
"(iii) If at the time of any annual meeting of the
Corporation's stockholders for the election of directors there
is a default in preference dividends on the Preferred Stock,
the number of directors constituting the Board of Directors of
the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series (whether or not the holders
of such series of Preferred Stock would be entitled to vote
for the election of directors if such default in preference
dividends did not exist) shall have the right at such meeting,
voting together as a single class without regard to series, to
the exclusion of the holders of Common Stock, to elect two
directors of the Corporation to fill such newly created
directorships. Such right shall continue until there are no
dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (a
"Preferred Director") shall continue to serve as such director
for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default
in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except
by, the vote of the holders of record of the outstanding
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shares of Preferred Stock, voting together as a single class
without regard to series, at a meeting of the Corporation's
stockholders, or of the holders of shares of Preferred Stock,
called for the purpose. So long as a default in any
preference dividends on the Preferred Stock shall exist, (a)
any vacancy in the office of a Preferred Director may be
filled (except as provided in the following clause (b)) by an
instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (b) in the case of
the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of
Preferred Stock, voting together as a single class without
regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes
hereof, to be a Preferred Director. Whenever the term of
office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of
directors constituting the Board of Directors of the
Corporation shall be reduced by two. For the purposes hereof,
a "default in preference dividends" on the Preferred Stock
shall be deemed to have occurred whenever the amount of
accrued dividends upon any series of the Preferred Stock shall
be equivalent to six full quarter-yearly dividends or more,
and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all
shares of Preferred Stock of each and every series then
outstanding shall have been paid to the end of the last
preceding dividend period."
3. The Preferred Stock Committee of the Board of Directors on
September 10, 1992, pursuant to the authority conferred upon the Preferred
Stock Committee of the Board of Directors by Section 141(c) of the General
Corporation Law of the State of Delaware, by Section 3.03 of the By-Laws of the
Corporation and by the resolutions of the Board of Directors set forth above,
adopted the following resolution:
"RESOLVED that, pursuant to resolutions of the Board of
Directors of Chemical Banking Corporation (the "Corporation") adopted
on March 17, 1992, the issue of up to 2,000,000 shares of 7.92%
Cumulative Preferred Stock, $100 stated value per share ($1 par
value), of the Corporation ranking on a parity with the series of
Preferred Stock of the Corporation designated as the Corporation's
"Adjustable Rate Cumulative Preferred Stock, Series B", the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series C",
the Corporation's "10-3/4% Cumulative Preferred Stock", the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series E",
the Corporation's "Adjustable Rate Cumulative Preferred Stock, Series
F", the
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Corporation's "10.96% Preferred Stock", the Corporation's "10%
Convertible Preferred Stock" and the Corporation's "8-3/8% Preferred
Stock" is hereby authorized and the designation, preferences and
privileges, relative, participating, optional and other special
rights, and qualifications, limitations and restrictions of all
2,000,000 shares of this Series, in addition to those set forth in the
Certificate of Incorporation of the Corporation and, with respect to
voting rights, in the resolutions of the Board of Directors of the
Corporation adopted on March 17, 1992, are hereby fixed as follows:
"1. Designation. The designation of this Series shall be
7.92% Cumulative Preferred Stock (hereinafter referred to as the
"Series") and the number of shares constituting this Series shall be
Two Million (2,000,000). Shares of this Series shall have a stated
value of $100. The number of authorized shares of this Series may be
reduced by further resolution duly adopted by the Board of Directors
of the Corporation or the Preferred Stock Committee of the Board of
Directors and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware
stating that such reduction has been so authorized, but the number of
authorized shares of this Series shall not be increased.
"2. Dividends. (a) Dividends shall be payable on the shares
of this Series: (i) for the period (the "Initial Dividend Period")
from the date of original issue of shares of this Series to and
including December 31, 1992, and (ii) for each quarterly dividend
period thereafter (the Initial Dividend Period and each quarterly
dividend period thereafter being hereinafter individually referred to
as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which quarterly Dividend Periods shall commence on January
1, April 1, July 1 and October 1 in each year, commencing January 1,
1993, and shall end on and include the day next preceding the first
day of the next Dividend Period, at a rate per annum of the stated
value thereof equal to 7.92% (the "Dividend Rate"). Dividends shall
be cumulative from such date of original issue and shall be payable,
when and as declared by the Board of Directors or by the Preferred
Stock Committee of the Board of Directors, on March 31, June 30,
September 30 and December 31 of each year, commencing on December 31,
1992. Each such dividend shall be paid to the holders of record of
shares of this Series as they appear on the stock register of the
Corporation on such record date, not exceeding 45 days preceding the
payment date thereof, as shall be fixed by the Board of Directors of
the Corporation or by the Preferred Stock Committee of the Board of
Directors. Dividends on account of arrears for any past Dividend
Periods may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such
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date, not exceeding 45 days preceding the payment date thereof, as may
be fixed by the Board of Directors of the Corporation or by the
Preferred Stock Committee of the Board of Directors.
"(b) Dividends payable on this Series for any period greater
or less than a full Dividend Period, including the Initial Dividend Period,
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and the actual number of days elapsed in the period. Dividends payable
on this Series for each full Dividend Period shall be computed by annualizing
the Dividend Rate and dividing by four.
"(c) No full dividends shall be declared or paid or set apart
for payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared and
a sum sufficient for the payment thereof set apart for such payment on this
Series for all Dividend Periods terminating on or prior to the date of payment
of such full cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the shares of this Series and any other series of Preferred
Stock ranking on a parity as to dividends with this Series, all dividends
declared upon shares of this Series and any other series of Preferred Stock
ranking on a parity as to dividends with this Series shall be declared pro rata
so that the amount of dividends declared per share on this Series and such
other Preferred Stock shall in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the shares of this Series and such
other Preferred Stock bear to each other. Holders of shares of this Series
shall not be entitled to any dividend, whether payable in cash, property or
stocks, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series which may be in
arrears.
"(d) So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other stock ranking
junior to this Series as to dividends and upon liquidation and other than as
provided in paragraph (c) of this Section 2) shall be declared or paid or set
aside for payment or other distribution declared or made upon the Common Stock
or upon any other stock ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock or any other stock of
the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon liquidation) unless, in each
case, the full cumulative dividends on all outstanding shares of this Series
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shall have been paid or declared and set aside for payment for all past
Dividend Periods.
"3. Redemption. (a) The shares of this Series are not
redeemable prior to October 1, 1997. The Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or from time
to time on or after October 1, 1997, at a redemption price of $100 per share,
plus accrued and unpaid dividends thereon to the date fixed for redemption.
"(b) In the event that fewer than all the outstanding shares
of this Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors of the Corporation or the Preferred Stock
Committee of the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board of Directors of
the Corporation or the Preferred Stock Committee of the Board of Directors or
by any other method as may be determined by the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of Directors in its
sole discretion to be equitable, provided that such method satisfies any
applicable requirements of any securities exchange on which this Series is
listed.
"(c) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 or more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation. Each
such notice shall state: (i) the redemption date; (ii) the number of shares of
this Series to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease to accrue on the
redemption date.
"(d) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of this Series so called for redemption shall cease to accrue, and said
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the redemption price) shall cease. Upon surrender in
accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of Directors shall so
require and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer than all the
shares represented by any such
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certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
"(e) Any shares of this Series which shall at any time have
been redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors of the Corporation or the Preferred Stock Committee of the Board of
Directors.
"(f) Notwithstanding the foregoing provisions of this Section
3, if any dividends on this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of this Series are
simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire any shares of this Series; provided, however, that the foregoing shall
not prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of this Series.
"4. Conversion. The holders of shares of this Series shall
not have any rights to convert such shares into shares of any other class or
series of capital stock of the Corporation.
"5. Liquidation Rights.
"(a) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the holders of the shares of this
Series shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its stockholders, before any payment
or distribution shall be made on the Common Stock or on any other class of
stock ranking junior to this Series upon liquidation, the amount of $100 per
share, plus accrued and unpaid dividends thereon.
"(b) After the payment to the holders of the shares of this
Series of the full preferential amounts provided for in this Section 5, the
holders of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
"(c) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the amounts payable with respect
to the stated value of the shares of this Series and any other shares of stock
of the Corporation ranking as to any such distribution on a parity with the
shares of this Series are not paid in full, the holders of the shares of this
Series and of such other shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full respective stated values to
which they are entitled.
"(d) Neither the sale of all or substantially all the
property or business of the Corporation, nor the merger or
E-10
consolidation of the Corporation into or with any other corporation or the
merger or consolidation of any other corporation into or with the Corporation,
shall be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section 5.
"(e) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of this Series then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section 5 before any payment shall be made to
the holder of any class of capital stock of the Corporation ranking junior to
this Series upon liquidation.
"6. Ranking. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
"(a) prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or classes shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of this Series;
"(b) on a parity with shares of this Series, either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the holders of
such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of this Series; and
"(c) junior to shares of this Series, either as to dividends
or upon liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in preference or priority to the holders of shares of such
class or classes.
"7. Voting Rights. The shares of this Series shall have the
voting rights set forth in the resolutions of the Board of Directors of the
Corporation adopted on March 17, 1992."
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Appendix F
CERTIFICATE OF DESIGNATIONS
OF
7.58% CUMULATIVE PREFERRED STOCK
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
CHEMICAL BANKING CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolutions were duly adopted by the Board of
Directors of the Corporation on March 17, 1992 and September 15, 1992, and by
the Preferred Stock Committee of the Board of Directors on March 16, 1993,
respectively, pursuant to authority conferred upon the Board of Directors by
the provisions of the Certificate of Incorporation of the Corporation which
authorize the issuance of up to 200,000,000 shares of preferred stock, $1 par
value (the "Preferred Stock"), and pursuant to authority conferred upon the
Preferred Stock Committee of the Board of Directors by Section 141(c) of the
General Corporation Law of the State of Delaware, by the By-Laws of the
Corporation and by the resolutions of the Board of Directors adopted at
meetings duly convened and held on March 17, 1992 and September 15, 1992:
1. The Board of Directors on March 17, 1992 adopted the
following resolutions authorizing a Preferred Stock Committee of the Board of
Directors to act on behalf of the Board of Directors in connection with the
issuance of the Preferred Stock:
"RESOLVED that the Board of Directors of Chemical Banking
Corporation (the "Board of Directors") deems it advisable and in the
best interests of Chemical Banking Corporation (the "Corporation") to
provide for the issuance and sale by the Corporation from time to time
of shares of preferred stock ($1 par value), in one or more series,
having an aggregate liquidation preference over the Corporation's
common stock, $1 par value (the "Common Stock"), not in excess of
$800,000,000, with such voting powers, designations, preferences, and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions, as are set forth in, or
are determined in accordance with, these resolutions (the "Preferred
Shares");
"RESOLVED that the Board of Directors deems it in the best
interest of the Corporation to delegate to the
F-1
Preferred Stock Committee those powers and duties set forth below;
"RESOLVED that the Preferred Stock Committee may, without the
further action of the Board of Directors, from time to time authorize
the issuance and sale from time to time of one or more series of
Preferred Shares for cash or other property, as shall be determined by
the Preferred Stock Committee, subject to the limitations above, and
any such Preferred Shares may be sold through agents, through
underwriters, through dealers and directly to purchasers, in one or
more offerings registered under the Securities Act of 1933 (the "Act")
or in transactions not required to be registered under the Act, all as
shall be determined by the Preferred Stock Committee; and any such
issuance and sale of Preferred Shares, including the issuance from
time to time of any warrants for such Preferred Shares, common or
preferred stock of the Corporation into which any series of Preferred
Shares may be convertible or exchangeable and the issuance and sale
from time to time of Depositary Shares (as hereinafter defined; it
being intended that, unless the context shall otherwise require, when
used in these resolutions the term "Preferred Shares" shall also
include any warranty or Depositary Shares related thereto) related to
the Preferred Shares, be and hereby is authorized and approved;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to act on behalf and in the stead of the
Board of Directors in connection with the issuance of one or more
series of the Preferred Shares and any common or preferred stock into
which such Preferred Shares may be convertible or exchangeable and, in
connection therewith, is hereby authorized, to the fullest extent
permitted by the Delaware General Corporation Law as it now exists or
is hereafter amended, to determine the price at which the Preferred
Shares of each such series will be sold by the Corporation, to declare
dividends payable on the Preferred Shares, to reserve for issuance on
the books of the Corporation or otherwise a sufficient number of
shares of any common or preferred stock of the Corporation into which
any series of the Preferred Shares may be convertible or exchangeable
and to determine the designation, preferences and privileges, the
relative, participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof;
"RESOLVED that, without limiting the generality of the
preceding resolution, the Preferred Stock Committee is hereby
expressly authorized:
"(i) to determine whether the Preferred Shares will
be issued in one or more series and the number of shares of
any such series;
F-2
"(ii) to fix the dividend rate or rates of such
shares and/or the methods of determining dividends and the
dates on which dividends shall be payable;
"(iii) to determine whether dividends of any series
of Preferred Shares shall be cumulative or noncumulative and,
if cumulative, the dates from which dividends shall commence
to cumulate;
"(iv) to determine the conversion or exchange
provisions, if any, of the shares of any series of the
Preferred Shares, including without limitation, the class and
series of capital stock of the Corporation into which such
shares shall be convertible or exchangeable;
"(v) to determine whether the Corporation shall
elect to offer (a) warrants for such Preferred Shares
("Warrants") or (b) depositary shares evidenced by depositary
receipts, each representing a fraction (to be determined by
the Preferred Stock Committee) of a share of a particular
series of the Preferred Shares ("Depositary Shares"), which
Preferred Shares will be issued and deposited with a
depositary, in each case, in lieu of offering full shares of
such series of the Preferred Shares;
"(vi) to fix the liquidation preference of the
shares of any series of the Preferred Shares, subject to the
limitation that the aggregate liquidation preference of all
the Preferred Shares issued shall not exceed $800,000,000;
"(vii) to determine whether the shares of any series
of the Preferred Shares shall be subject to redemption,
optional or mandatory or pursuant to a sinking fund, and, if
such series shall be subject to redemption, the redemption
provisions of such series; and
"(viii) to fix or determine any additional dividend,
liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions thereof;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to authorize, approve and take such other
action as is deemed advisable in connection with the issuance of one
or more series of the Preferred Shares, including without limitation,
the following:
F-3
"(i) selecting the underwriters, dealers and agents,
if any, to or through which the Preferred Shares will be sold
and offered;
"(ii) approving the form and substance, and the
execution and delivery, of any underwriting agreement, agency
agreement, placement agreement or other agreement to be
entered into by the Corporation in connection with the
issuance and sale of the Preferred Shares, including, without
limitation, setting the amount of any underwriting discounts
and other items constituting underwriters' compensation and
any discounts and commissions allowed or paid to dealers or
agents;
"(iii) selecting the bank or trust company which
will act as depositary if Depositary Shares are offered and
approving the form and substance, and the execution and
delivery, of any deposit agreement to be entered into by the
Corporation with such depositary; and
"(iv) appointing a registrar and transfer agent for
the registration, transfer and exchange of the Preferred
Shares and appointing a dividend disbursing agent for the
Preferred Shares;
"RESOLVED that for each series of Preferred Shares a
certificate shall be prepared and filed on behalf of the Corporation
with the Secretary of State of the State of Delaware pursuant to
Section 151 of the General Corporation Law of the State of Delaware (a
"Certificate of Designations"); that each such Certificate of
Designations be in such form as is approved by action of the Board of
Directors or the Preferred Stock Committee; and that the proper
officers of the Corporation be and hereby are authorized to execute
and file each such Certificate of Designations pursuant to the General
Corporation Law of the State of Delaware."
2. The Board of Directors on September 15, 1992 adopted
the following resolution authorizing a Preferred Stock Committee of the Board
of Directors to act on behalf of the Board of Directors in connection with the
issuance of additional shares of the Preferred Stock:
"RESOLVED that the Board of Directors of Chemical Banking
Corporation (the "Board of Directors") deems it advisable and in the
best interests of Chemical Banking Corporation (the "Corporation") to
amend certain resolutions adopted by the Board of Directors on March
17, 1992 pertaining to the authority of the Preferred Stock Committee
of the Board (the "March 17, 1992 Resolutions") to authorize the
Preferred Stock Committee of the Board of Directors to approve the
issuance and sale by the Corporation from time
F-4
to time of Preferred Shares as defined in the March 17, 1992
Resolutions, in one or more series, having an additional aggregate
liquidation preference over the Corporation's common stock, $1 par
value, not in excess of $1,300,000,000 (an increase of $500,000,000
from the $800,000,000 authorized under the March 17, 1992
Resolutions), with such voting powers, designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions, as are set forth in, or
are determined in accordance with the March 17, 1992 Resolutions which
shall in all other respects remain in full force and effect and are
hereby ratified and affirmed."
3. The Board of Directors on March 17, 1992 adopted the
following resolution fixing the voting rights of the Preferred Stock authorized
by the preceding resolutions:
"RESOLVED that the Certificate of Designations for each series
of the Preferred Shares shall provide that the shares of such series
shall not have any voting powers either general or special except
that:
"(i) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
consent of the holders of at least 66-2/3% of all of the
shares of any series at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of such
series 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 Certificate of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar document relating
to any series of Preferred Stock) so as to affect adversely
the preferences, rights, powers or privileges of such series;
"(ii) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
consent of the holders of at least 66-2/3% of all of the
shares of any such series and all other series of Preferred
Stock ranking on a parity with shares of such series, either
as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at
a meeting called for the purpose at which the holders of
shares of such series and such other series of Preferred Stock
shall vote together as a single class without regard to
series, shall be necessary for authorizing, effecting or
validating the creation, authorization or issue of any shares
of any class of
F-5
stock of the Corporation ranking prior to the shares of such
series as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation
into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares; and
"(iii) If at the time of any annual meeting of the
Corporation's stockholders for the election of directors there
is a default in preference dividends on the Preferred Stock,
the number of directors constituting the Board of Directors of
the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series (whether or not the holders
of such series of Preferred Stock would be entitled to vote
for the election of directors if such default in preference
dividends did not exist), shall have the right at such
meeting, voting together as a single class without regard to
series, to the exclusion of the holders of Common Stock, to
elect two directors of the Corporation to fill such newly
created directorships. Such right shall continue until there
are no dividends in arrears upon the Preferred Stock. Each
director elected by the holders of shares of Preferred Stock
(a "Preferred Director"), shall continue to serve as such
director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a
default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed
except by, the vote of the holders of record of the
outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at a meeting of the
Corporation's stockholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long as a default
in any preference dividends on the Preferred Stock shall
exist, (a) any vacancy in the office of a Preferred Director
may be filled (except as provided in the following clause (b))
by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (b) in the case of
the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of
Preferred Stock, voting together as a single class without
regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes
hereof, to be a Preferred Director. Whenever the term of
office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of
directors constituting the Board of Directors of the
Corporation shall be reduced by
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two. For the purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed to have
occurred whenever the amount of accrued dividends upon any
series of the Preferred Stock shall be equivalent to six full
quarter-yearly dividends or more, and having so occurred, such
default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of Preferred Stock
of each and every series then outstanding shall have been paid
to the end of the last preceding dividend period."
4. The Preferred Stock Committee of the Board of
Directors on March 16, 1993, pursuant to the authority conferred upon the
Preferred Stock Committee of the Board of Directors by Section 141(c) of the
General Corporation Law of the State of Delaware, by Section 3.03 of the
By-Laws of the Corporation and by the resolutions of the Board of Directors set
forth above, adopted the following resolution:
"RESOLVED that, pursuant to resolutions of the Board of
Directors of Chemical Banking Corporation (the "Corporation") adopted
on March 17, 1992 and September 15, 1992, the issue of up to 2,300,000
shares of 7.58% Cumulative Preferred Stock, $100 stated value per
share ($1 par value) of the Corporation ranking on a parity with the
series of Preferred Stock of the Corporation designated as the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series C",
the Corporation's "10-3/4% Cumulative Preferred Stock", the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series E",
the Corporation's "Adjustable Rate Cumulative Preferred Stock, Series
F", the Corporation's "10.96% Preferred Stock", the Corporation's "10%
Convertible Preferred Stock", the Corporation's "8-3/8% Preferred
Stock" and the Corporation's "7.92% Cumulative Preferred Stock" is
hereby authorized and the designation, preferences and privileges,
relative, participating, optional and other special rights, and
qualifications, limitations and restrictions of all 2,300,000 shares
of this Series, in addition to those set forth in the Certificate of
Incorporation of the Corporation and, with respect to voting rights,
in the resolutions of the Board of Directors of the Corporation
adopted on March 17, 1992 and September 15, 1992, are hereby fixed as
follows:
"1. Designation. The designation of this Series
shall be 7.58% Cumulative Preferred Stock (hereinafter
referred to as the "Series") and the number of shares
constituting this series shall be 2,300,000. Shares of this
Series shall have a stated value of $100. The number of
authorized shares of this Series may be reduced by further
resolution duly adopted by the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of
Directors and by the filing of a certificate pursuant to the
provisions of the
F-7
General Corporation Law of the State of Delaware stating that
such reduction has been so authorized, but the number of
authorized shares of this Series shall not be increased.
"2. Dividends. (a) Dividends shall be payable on
the shares of this Series: (i) for the period (the "Initial
Dividend Period") from the date of original issue of shares of
this Series to and including June 30, 1993, and (ii) for each
quarterly dividend period thereafter (the Initial Dividend
Period and each quarterly dividend period thereafter being
hereinafter individually referred to as a "Dividend Period"
and collectively referred to as "Dividend Periods"), which
quarterly Dividend Periods shall commence on January 1, April
1, July 1 and October 1 in each year, commencing July 1, 1993,
and shall end on and include the day next preceding the first
day of the next Dividend Period, at a rate per annum of the
stated value thereof equal to 7.58% (the "Dividend Rate").
Dividends shall be cumulative from such date of original issue
and shall be payable, when and as declared by the Board of
Directors or by the Preferred Stock Committee of the Board of
Directors, on March 31, June 30, September 30 and December 31
of each year, commencing on June 30, 1993. Each such dividend
shall be paid to the holders of record of shares of this
Series as they appear on the stock register of the Corporation
on such record date, not exceeding 45 days preceding the
payment date thereof, as shall be fixed by the Board of
Directors of the Corporation or by the Preferred Stock
Committee of the Board of Directors. Dividends on account of
arrears for any past Dividend Periods may be declared and paid
at any time, without reference to any regular dividend payment
date, to holders on such date, not exceeding 45 days preceding
the payment date thereof, as may be fixed by the Board of
Directors of the Corporation or by the Preferred Stock
Committee of the Board of Directors.
"(b) Dividends payable on this Series for any period
greater or less than a full Dividend Period, including the
Initial Dividend Period, shall be computed on the basis of a
360-day year consisting of twelve 30-day months and the actual
number of days elapsed in the period. Dividends payable on
this Series for each full Dividend Period shall be computed by
annualizing the Dividend Rate and dividing by four.
"(c) No full dividends shall be declared or paid or
set apart for payment on the Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to this
Series for any period unless full cumulative dividends have
been or contemporaneously are
F-8
declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on this Series for
all Dividend Periods terminating on or prior to the date of
payment of such full cumulative dividends. When dividends are
not paid in full, as aforesaid, upon the shares of this Series
and any other series of Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon
shares of this Series and any other series of Preferred Stock
ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in
all cases bear to each other the same ratio that accrued and
unpaid dividends per share on the shares of this Series and
such other Preferred Stock bear to each other. Holders of
shares of this Series shall not be entitled to any dividend,
whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on this Series. No
interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this
Series which may be in arrears.
"(d) So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common
Stock or in any other stock ranking junior to this Series as
to dividends and upon liquidation and other than as provided
in paragraph (c) of this Section 2) shall be declared or paid
or set aside for payment or other distribution declared or
made upon the Common Stock or upon any other stock ranking
junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other
stock of the Corporation ranking junior to or on a parity with
this Series as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the
Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of this Series shall have
been paid or declared and set aside for payment for all past
Dividend Periods.
"3. Redemption. (a) The shares of this Series are
not redeemable prior to April 1, 1998. The Corporation, at
its option, may redeem shares of this Series, as a whole or in
part, at any time or from time to time on or after April 1,
1998, at a redemption
F-9
price of $100 per share plus accrued and unpaid dividends
thereon to the date fixed for redemption.
"(b) In the event that fewer than all the
outstanding shares of this Series are to be redeemed, the
number of shares to be redeemed shall be determined by the
Board of Directors of the Corporation or the Preferred Stock
Committee of the Board of Directors and the shares to be
redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors of the Corporation or the
Preferred Stock Committee of the Board of Directors or by any
other method as may be determined by the Board of Directors of
the Corporation or the Preferred Stock Committee of the Board
of Directors in its sole discretion to be equitable, provided
that such method satisfies any applicable requirements of any
securities exchange on which this Series is listed.
"(c) In the event the Corporation shall redeem
shares of this Series, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less
than 30 or more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such
holder's address as the same appears on the stock register of
the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to
be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (v)
that dividends on the shares to be redeemed will cease to
accrue on the redemption date.
"(d) Notice having been mailed as aforesaid, from
and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the
redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption
price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors shall so require and the notice
shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are
F-10
redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
"(e) Any shares of this Series which shall at any
time have been redeemed shall, after such redemption, have the
status of authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once
more designated as part of a particular series by the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors.
"(f) Notwithstanding the foregoing provisions of
this Section 3, if any dividends on this Series are in
arrears, no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously redeemed,
and the Corporation shall not purchase or otherwise acquire
any shares of this Series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of
shares of this Series pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of
this Series.
"4. Conversion. The holders of shares of this
Series shall not have any rights to convert such shares into
shares of any other class or series of capital stock of the
Corporation.
"5. Liquidation Rights. (a) Upon the voluntary or
involuntary dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be
entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its stockholders,
before any payment or distribution shall be made on the Common
Stock or on any other class of stock ranking junior to this
Series upon liquidation, the amount of $100 per share, plus
accrued and unpaid dividends thereon.
"(b) After the payment to the holders of the shares
of this Series of the full preferential amounts provided for
in this Section 5, the holders of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
"(c) If, upon any voluntary or involuntary
dissolution, liquidation, or winding up of the Corporation,
the amounts payable with respect to the stated value of the
shares of this Series and any other shares of stock of the
Corporation ranking as to any such distribution on a parity
with the Shares of this Series are not paid in full, the
holders of the shares
F-11
of this Series and of such other shares will share ratably in
any such distribution of assets of the Corporation in
proportion to the full respective stated values to which they
are entitled.
"(d) Neither the sale of all or substantially all the
property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to
be a dissolution, liquidation, or winding up, voluntary or
involuntary, for the purposes of this Section 5.
"(e) Upon the dissolution, liquidation or winding up
of the Corporation, the holders of shares of this Series then
outstanding shall be entitled to be paid out of the assets of
the Corporation available for distribution to its stockholders
all amounts to which such holders are entitled pursuant to
paragraph (a) of this Section 5 before any payment shall be
made to the holder of any class of capital stock of the
Corporation ranking junior to this Series upon liquidation.
"6. Ranking. For purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
"(a) prior to the shares of this Series, either as
to dividends or upon liquidation, if the holders of such class
or classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or
priority to the holders of shares of this Series;
"(b) on a parity with shares of this Series, either
as to dividends or upon liquidation, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fund provisions, if
any, be different from those of this Series, if the holders of
such shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, without preference
or priority, one over the other, as between the holders of
such stock and the holders of shares of this Series; and
"(c) junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be Common
Stock or if the holders of shares of this Series shall be
entitled to receipt of dividends or of amounts distributable
upon dissolution, liquidation or
F-12
winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of such class
or classes.
"7. Voting Rights. The shares of this Series shall
have the voting rights set forth in the resolutions of the
Board of Directors of the Corporation adopted on March 17,
1992."
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Appendix G
CERTIFICATE OF DESIGNATIONS
OF
7-1/2% CUMULATIVE PREFERRED STOCK
OF
CHEMICAL BANKING CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
CHEMICAL BANKING CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolutions were duly adopted by the Board of
Directors of the Corporation on March 17, 1992 and September 15, 1992, and by
the Preferred Stock Committee of the Board of Directors on March 16, 1993,
respectively, pursuant to authority conferred upon the Board of Directors by
the provisions of the Certificate of Incorporation of the Corporation which
authorize the issuance of up to 200,000,000 shares of preferred stock, $1 par
value (the "Preferred Stock"), and pursuant to authority conferred upon the
Preferred Stock Committee of the Board of Directors by Section 141(c) of the
General Corporation Law of the State of Delaware, by the By-Laws of the
Corporation and by the resolutions of the Board of Directors adopted at
meetings duly convened and held on March 17, 1992 and September 15, 1992:
1. The Board of Directors on March 17, 1992 adopted the
following resolutions authorizing a Preferred Stock Committee of the Board of
Directors to act on behalf of the Board of Directors in connection with the
issuance of the Preferred Stock:
"RESOLVED that the Board of Directors of Chemical
Banking Corporation (the "Board of Directors") deems it
advisable and in the best interests of Chemical Banking
Corporation (the "Corporation") to provide for the issuance
and sale by the Corporation from time to time of shares of
preferred stock ($1 par value), in one or more series, having
an aggregate liquidation preference over the Corporation's
common stock, $1 par value (the "Common Stock"), not in excess
of $800,000,000, with such voting powers, designations,
preferences and relative, participating, optional or other
special rights, and qualifications, limitations or
restrictions, as are set forth in, or are determined in
accordance with, these resolutions (the "Preferred Shares");
G-1
"RESOLVED that the Board of Directors deems it in the best
interests of the Corporation to delegate to the Preferred Stock
Committee those powers and duties set forth below;
"RESOLVED that the Preferred Stock Committee may, without the
further action of the Board of Directors, from time to time authorize
the issuance and sale from time to time of one or more series of
Preferred Shares for cash or other property, as shall be determined by
the Preferred Stock Committee, subject to the limitations above, and
any such Preferred Shares may be sold through agents, through
underwriters, through dealers and directly to purchasers, in one or
more offerings registered under the Securities Act of 1933 (the "Act")
or in transactions not required to be registered under the Act, all as
shall be determined by the Preferred Stock Committee; and any such
issuance and sale of Preferred Shares, including the issuance from
time to time of any warrants for such Preferred Shares, common or
preferred stock of the Corporation into which any series of Preferred
Shares may be convertible or exchangeable and the issuance and sale
from time to time of Depositary Shares (as hereinafter defined; it
being intended that, unless the context shall otherwise require, when
used in these resolutions the term "Preferred Shares" shall also
include any warrants or Depositary Shares related thereto) related to
the Preferred Shares, be and hereby is authorized and approved;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to act on behalf and in the stead of the
Board of Directors in connection with the issuance of one or more
series of the Preferred Shares and any common or preferred stock into
which such Preferred Shares may be convertible or exchangeable and, in
connection therewith, is hereby authorized, to the fullest extent
permitted by the Delaware General Corporation Law as it now exists or
is hereafter amended, to determine the price at which the Preferred
Shares of each such series will be sold by the Corporation, to declare
dividends payable on the Preferred Shares, to reserve for issuance on
the books of the Corporation or otherwise a sufficient number of
shares of any common or preferred stock of the Corporation into which
any series of the Preferred Shares may be convertible or exchangeable
and to determine the designation, preferences and privileges, the
relative, participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof;
"RESOLVED that, without limiting the generality of the
preceding resolution, the Preferred Stock Committee is hereby
expressly authorized:
G-2
"(i) to determine whether the Preferred Shares will
be issued in one or more series and the number of shares of
any such series;
"(ii) to fix the dividend rate or rates of such
shares and/or the methods of determining dividends and the
dates on which dividends shall be payable;
"(iii) to determine whether dividends of any series
of Preferred Shares shall be cumulative or noncumulative and,
if cumulative, the dates from which dividends shall commence
to cumulate;
"(iv) to determine the conversion or exchange
provisions, if any, of the shares of any series of the
Preferred Shares, including without limitation, the class and
series of capital stock of the Corporation into which such
shares shall be convertible or exchangeable;
"(v) to determine whether the Corporation shall
elect to offer (a) warrants for such Preferred Shares
("Warrants") or (b) depositary shares evidenced by depositary
receipts, each representing a fraction (to be determined by
the Preferred Stock Committee) of a share of a particular
series of the Preferred Shares ("Depositary Shares"), which
Preferred Shares will be issued and deposited with a
depositary, in each case, in lieu of offering full shares of
such series of the Preferred Shares;
"(vi) to fix the liquidation preference of the
shares of any series of the Preferred Shares, subject to the
limitation that the aggregate liquidation preference of all
the Preferred Shares issued shall not exceed $800,000,000;
"(vii) to determine whether the shares of any series
of the Preferred Shares shall be subject to redemption,
optional or mandatory or pursuant to a sinking fund, and, if
such series shall be subject to redemption, the redemption
provisions of such series; and
"(viii) to fix or determine any additional dividend,
liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions thereof;
"RESOLVED that the Preferred Stock Committee be and hereby is
authorized and empowered to authorize, approve and take such other
action as is deemed advisable in connection with the issuance of one
or more series of the Preferred Shares, including, without limitation,
the following:
G-3
"(i) selecting the underwriters, dealers and agents,
if any, to or through which the Preferred Shares will be sold
and offered;
"(ii) approving the form and substance, and the
execution and delivery, of any underwriting agreement, agency
agreement, placement agreement or other agreement to be
entered into by the Corporation in connection with the
issuance and sale of the Preferred Shares, including, without
limitation, setting the amount of any underwriting discounts
and other items constituting underwriters' compensation and
any discounts and commissions allowed or paid to dealers or
agents;
"(iii) selecting the bank or trust company which
will act as depositary if Depositary Shares are offered and
approving the form and substance, and the execution and
delivery, of any deposit agreement to be entered into by the
Corporation with such depositary; and
"(iv) appointing a registrar and transfer agent for
the registration, transfer and exchange of the Preferred
Shares and appointing a dividend disbursing agent for the
Preferred Shares;
"RESOLVED that for each series of Preferred Shares a
certificate shall be prepared and filed on behalf of the Corporation
with the Secretary of State of the State of Delaware pursuant to
Section 151 of the General Corporation Law of the State of Delaware (a
"Certificate of Designations"); that each such Certificate of
Designations be in such form as is approved by action of the Board of
Directors or the Preferred Stock Committee; and that the proper
officers of the Corporation be and hereby are authorized to execute
and file each such Certificate of Designations pursuant to the General
Corporation Law of the State of Delaware."
2. The Board of Directors on September 15, 1992 adopted
the following resolution authorizing a Preferred Stock Committee of the Board
of Directors to act on behalf of the Board of Directors in connection with the
issuance of additional shares of the Preferred Stock:
"RESOLVED that the Board of Directors of Chemical Banking
Corporation (the "Board of Directors") deems it advisable and in the
best interests of Chemical Banking Corporation (the "Corporation") to
amend certain resolutions adopted by the Board of Directors on March
17, 1992 pertaining to the authority of the Preferred Stock Committee
of the Board (the "March 17, 1992 Resolutions") to authorize the
Preferred Stock Committee of the Board of Directors to approve the
issuance and sale by the Corporation from time
G-4
to time of Preferred Shares as defined in the March 17, 1992
Resolutions, in one or more series, having an additional aggregate
liquidation preference over the Corporation's Common Stock, $1 par
value, not in excess of $1,300,000,000 (an increase of $500,000,000
from the $800,000,000 authorized under the March 17, 1992
Resolutions), with such voting powers, designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions, as are set forth in, or
are determined in accordance with the March 17, 1992 Resolutions which
shall in all other respects remain in full force and effect and are
hereby ratified and affirmed."
3. The Board of Directors on March 17, 1992 adopted the
following resolution fixing the voting rights of the Preferred Stock authorized
by the preceding resolutions:
"RESOLVED that the Certificate of Designations for
each series of the Preferred Shares shall provide that the shares of
such series shall not have any voting powers either general or special,
except that:
"(i) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
consent of the holders of at least 66-2/3% of all of the
shares of any series at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of such
series 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 Certificate of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar document relating
to any series of Preferred Stock) so as to affect adversely
the preferences, rights, powers or privileges of such series;
"(ii) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
consent of the holders of at least 66-2/3% of all of the
shares of any such series and all other series of Preferred
Stock ranking on a parity with shares of such series, either
as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at
a meeting called for the purpose at which the holders of
shares of such series and such other series of Preferred Stock
shall vote together as a single class without regard to
series, shall be necessary for authorizing, effecting or
validating the creation, authorization or issue of any shares
of any class of
G-5
stock of the Corporation ranking prior to the shares of such
series as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation
into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares; and
"(iii) If at the time of any annual meeting of the
Corporation's stockholders for the election of directors there
is a default in preference dividends on the Preferred Stock,
the number of directors constituting the Board of Directors of
the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series (whether or not the holders
of such series of Preferred Stock would be entitled to vote
for the election of directors if such default in preference
dividends did not exist), shall have the right at such
meeting, voting together as a single class without regard to
series, to the exclusion of the holders of Common Stock, to
elect two directors of the Corporation to fill such newly
created directorships. Such right shall continue until there
are no dividends in arrears upon the Preferred Stock. Each
director elected by the holders of shares of Preferred Stock
(a "Preferred Director"), shall continue to serve as such
director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a
default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed
except by, the vote of the holders of record of the
outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at a meeting of the
Corporation's stockholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long as a default
in any preference dividends on the Preferred Stock shall
exist, (a) any vacancy in the office of a Preferred Director
may be filled (except as provided in the following clause (b))
by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (b) in the case of
the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of
Preferred Stock, voting together as a single class without
regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes
hereof, to be a Preferred Director. Whenever the term of
office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of
directors constituting the Board of Directors of the
Corporation shall be reduced by
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two. For the purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed to have
occurred whenever the amount of accrued dividends upon any
series of the Preferred Stock shall be equivalent to six full
quarter-yearly dividends or more, and, having so occurred,
such default shall be deemed to exist thereafter until, but
only until, all accrued dividends on all shares of Preferred
Stock of each and every series then outstanding shall have
been paid to the end of the last preceding dividend period."
4. The Preferred Stock Committee of the Board of
Directors on May 17, 1993, pursuant to the authority conferred upon the
Preferred Stock Committee of the Board of Directors by Section 141(c) of the
General Corporation Law of the State of Delaware, by Section 3.03 of the
By-Laws of the Corporation and by the resolutions of the Board of Directors set
forth above, adopted the following resolution:
"RESOLVED that, pursuant to resolutions of the Board of
Directors of Chemical Banking Corporation (the "Corporation") adopted
on March 17, 1992 and September 15, 1992, the issue of up to 2,300,000
shares of 7-1/2% Cumulative Preferred Stock, $100 stated value per
share ($1 par value), of the Corporation ranking on a parity with the
series of Preferred Stock of the Corporation designated as the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series C",
the Corporation's "10-3/4% Cumulative Preferred Stock", the
Corporation's "Adjustable Rate Cumulative Preferred Stock, Series F",
the Corporation's "10.96% Preferred Stock", the Corporation's "10%
Convertible Preferred Stock", the Corporation's "8-3/8% Preferred
Stock", the Corporation's "7.92% Cumulative Preferred Stock" and the
Corporation's "7.58% Cumulative Preferred Stock" is hereby authorized
and the designation, preferences and privileges, relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions of all 2,300,000 shares of this Series,
in addition to those set forth in the Certificate of Incorporation of
the Corporation and, with respect to voting rights, in the resolutions
of the Board of Directors of the Corporation adopted on March 17, 1992
and September 15, 1992, are hereby fixed as follows:
"1. Designation. The designation of this series
shall be 7-1/2% Cumulative Preferred Stock (hereinafter
referred to as the "Series") and the number of shares
constituting this Series shall be 2,300,000. Shares of this
Series shall have a stated value of $100. The number of
authorized shares of this Series may be reduced by further
resolution duly adopted by the Board of Directors of the
Corporation or the Preferred Stock Committee of the Board of
Directors and by the filing of a certificate pursuant to the
provisions of the
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General Corporation Law of the State of Delaware stating that
such reduction has been so authorized, but the number of
authorized shares of this Series shall not be increased.
"2. Dividends. (a) Dividends shall be payable on
the shares of this Series: (i) for the period (the "Initial
Dividend Period") from the date of original issue of shares of
this Series to and including June 30, 1993, and (ii) for each
quarterly dividend period thereafter (the Initial Dividend
Period and each quarterly dividend period thereafter being
hereinafter individually referred to as a "Dividend Period"
and collectively referred to as "Dividend Periods"), which
quarterly Dividend Periods shall commence on January 1, April
1, July 1 and October 1 in each year, commencing June 30,
1993, and shall end on and include the day next preceding the
first day of the next Dividend Period, at a rate per annum of
the stated value thereof equal to 7-1/2% (the "Dividend
Rate"). Dividends shall be cumulative from such date of
original issue and shall be payable, when and as declared by
the Board of Directors or by the Preferred Stock Committee of
the Board of Directors, on March 31, June 30, September 30 and
December 31 of each year, commencing on June 30, 1993. Each
such dividend shall be paid to the holders of record of shares
of this Series as they appear on the stock register of the
Corporation on such record date, not exceeding 45 days
preceding the payment date thereof, as shall be fixed by the
Board of Directors of the Corporation or by the Preferred
Stock Committee of the Board of Directors. Dividends on
account of arrears for any past Dividend Periods may be
declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such
date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors of the
Corporation or by the Preferred Stock Committee of the Board
of Directors.
"(b) Dividends payable on this Series for any period
greater or less than a full Dividend Period, including the
Initial Dividend Period, shall be computed on the basis of a
360-day year consisting of twelve 30-day months and the actual
number of days elapsed in the period. Dividends payable on
this Series for each full Dividend Period shall be computed by
annualizing the Dividend Rate and dividing by four.
"(c) No full dividends shall be declared or paid or
set apart for payment on the Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to this
Series for any Period unless full cumulative dividends have
been or contemporaneously are
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declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on this Series for
all Dividend Periods terminating on or prior to the date of
payment of such full cumulative dividends. When dividends are
not paid in full, as aforesaid, upon the shares of this Series
and any other series of Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon
shares of this Series and any other series of Preferred Stock
ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in
all cases bear to each other the same ratio that accrued and
unpaid dividends per share on the shares of this Series and
such other Preferred Stock bear to each other. Holders of
shares of this Series shall not be entitled to any dividend,
whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on this Series. No
interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this
Series which may be in arrears.
"(d) So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common
Stock or in any other stock ranking junior to this Series as
to dividends and upon liquidation and other than as provided
in paragraph (c) of this Section 2) shall be declared or paid
or set aside for payment or other distribution declared or
made upon the Common Stock or upon any other stock ranking
junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other
stock of the Corporation ranking junior to or on a parity with
this Series as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the
Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of this Series shall have
been paid or declared and set aside for payment for all past
Dividend Periods.
"3. Redemption. (a) The shares of this Series are
not redeemable prior to June 1, 1998. The Corporation, at its
option, may redeem shares of this Series, as a whole or in
part, at any time or from time to time, on or after June 1,
1998, at a redemption
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price of $100 per share plus accrued and unpaid dividends
thereon to the date fixed for redemption.
"(b) In the event that fewer than all the
outstanding shares of this Series are to be redeemed, the
number of shares to be redeemed shall be determined by the
Board of Directors of the Corporation or the Preferred Stock
Committee of the Board of Directors and the shares to be
redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors of the Corporation or the
Preferred Stock Committee of the Board of Directors or by any
other method as may be determined by the Board of Directors of
the Corporation or the Preferred Stock Committee of the Board
of Directors in its sole discretion to be equitable, provided
that such method satisfies any applicable requirements of any
securities exchange on which this Series is listed.
"(c) In the event the Corporation shall redeem
shares of this Series, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less
than 30 or more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such
holder's address as the same appears on the stock register of
the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to
be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (v)
that dividends on the shares to be redeemed will cease to
accrue on the redemption date.
"(d) Notice having been mailed as aforesaid, from
and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the
redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption
price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors shall so require and the notice
shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are
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redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
"(e) Any shares of this Series which shall at any
time have been redeemed shall, after such redemption, have the
status of authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once
more designated as part of a particular series by the Board of
Directors of the Corporation or the Preferred Stock Committee
of the Board of Directors.
"(f) Notwithstanding the foregoing provisions of
this Section 3, if any dividends on this Series are in
arrears, no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously redeemed,
and the Corporation shall not purchase or otherwise acquire
any shares of this Series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of
shares of this Series pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of
this Series.
"4. Conversion. The holders of shares of this
Series shall not have any rights to convert such shares into
shares of any other class or series of capital stock of the
Corporation.
"5. Liquidation Rights. (a) Upon the voluntary or
involuntary dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be
entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its stockholders,
before any payment or distribution shall be made on the Common
Stock or on any other class of stock ranking junior to this
Series upon liquidation, the amount of $100 per share, plus
accrued and unpaid dividends thereon.
"(b) After the payment to the holders of the shares
of this Series of the full preferential amounts provided for
in this Section 5, the holders of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
"(c) If, upon any voluntary or involuntary
dissolution, liquidation, or winding up of the Corporation,
the amounts payable with respect to the stated value of the
shares of this Series and any other shares of stock of the
Corporation ranking as to any such distribution on a parity
with the shares of this Series are not paid in full, the
holders of the shares
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of this Series and of such other shares will share ratably in
any such distribution of assets of the Corporation in
proportion to the full respective stated values to which they
are entitled.
"(d) Neither the sale of all or substantially all
the property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to
be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section 5.
"(e) Upon the dissolution, liquidation or winding up
of the Corporation, the holders of shares of this Series then
outstanding shall be entitled to be paid out of the assets of
the Corporation available for distribution to its stockholders
all amounts to which such holders are entitled pursuant to
paragraph (a) of this Section 5 before any payment shall be
made to the holder of any class of capital stock of the
Corporation ranking junior to this Series upon liquidation.
"6. Ranking. For purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
"(a) prior to the shares of this Series, either as
to dividends or upon liquidation, if the holders of such class
or classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or
priority to the holders of shares of this Series;
"(b) on a parity with shares of this Series, either
as to dividends or upon liquidation, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fund provisions, if
any, be different from those of this Series, if the holders of
such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, without preference
or priority, one over the other, as between the holders of
such stock and the holders of shares of this Series; and
"(c) junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be Common
Stock or if the holders of shares of this Series shall be
entitled to receipt of dividends or of amounts distributable
upon dissolution, liquidation or
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winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of such class
or classes.
"7. Voting Rights. The shares of this Series shall
have the voting rights set forth in the resolutions of the
Board of Directors of the Corporation adopted on March 17,
1992."
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