Exhibit
3(i)
COMMUNITY
BANCORP.
CERTIFICATE
OF CREATION, DESIGNATION, POWERS,
PREFERENCES,
RIGHTS, PRIVILEGES, QUALIFICATIONS,
LIMITATIONS,
RESTRICTIONS, TERMS AND CONDITIONS
of
SERIES
A FIXED-TO-FLOATING RATE NON-CUMULATIVE PERPETUAL PREFERRED STOCK
(Without
Par Value)
I,
Christianne Bumps, Secretary of Community Bancorp., a Vermont corporation (the
"Company"), do hereby certify that, pursuant to authority vested in the Board
of
Directors of the Company by 11A VSA § 6.02 and Article Five, Section B of the
Company’s Amended and Restated Articles of Association (the “Articles”), the
Board of Directors adopted Resolution Approving Designation and Issuance of
Series A Preferred Shares on December 18, 2007, which resolution is now, and
at
all times since such date has been, in full force and effect, and that the
Chairman and Chief Executive Officer, pursuant to the authority delegated to
him
by such resolution, approved the final terms of the issuance and sale of the
series of preferred stock of the Company designated above.
The
Series A Fixed-to-Floating Rate Non-Cumulative Preferred Stock shall have the
following designation, powers, preferences, rights, privileges, qualifications,
limitations, restrictions, terms and conditions:
1.
Designation, Number of Shares and Seniority
The
series of preferred stock of the Company created hereby (the "Series A
Non-Cumulative Preferred Stock") shall be designated "Series A Fixed-to-Floating
Rate Non-Cumulative Perpetual Preferred Stock," shall be without a par value
and
shall consist of twenty-five (25) shares. Subject to Sections 8.B and
9.H below, the Board of Directors shall be permitted to increase the authorized
number of such shares at any time. The Series A Non-Cumulative Preferred Stock
shall rank prior to the Common Stock of the Company, $2.50 par value per share
(the "Common Stock") as to both dividends and distributions upon liquidation,
to
the extent provided in this Certificate.
2.
Dividends
A. For
each Dividend Period from December 27, 2007 through December 31, 2012, holders
of outstanding shares of Series A Non-Cumulative Preferred Stock shall be
entitled to receive, ratably, when, as and if declared by the Board of
Directors, in its sole discretion, out of funds legally available therefor,
non-cumulative cash dividends at the annual rate of 7.50%, or $7,500.00, per
share of Series A Non-Cumulative Preferred Stock. Dividends on the Series A
Non-Cumulative Preferred Stock shall accrue from but not including December
27,
2007 and will be payable in arrears when, as and if declared by the Board of
Directors quarterly on March 31, June 30, September 30 and December 31 of each
year (each, a "Dividend Payment Date"), commencing on March 31, 2008. If a
Dividend Payment Date is not a "Business Day," the related dividend will be
paid
not later than the next Business Day with the same force and effect as though
paid on the Dividend Payment Date, without any increase to account for the
period from such Dividend Payment Date through the date of actual payment.
"Business Day" means a day other than (i) a Saturday or Sunday, (ii) a day
on
which national banks operating in Vermont are closed, or (iii) a day on which
the offices of the Company are closed.
If
declared, the initial dividend, which will be for the period from but not
including December 27, 2007 through and including March 31, 2008, will be $83.33
per share. Thereafter, through December 31, 2012, dividends will accrue from
Dividend Period to Dividend Period at a rate equal to 7.50% divided by four;
the
amount of dividends payable in respect of any shorter period shall be computed
on the basis of twelve 30-day months and a 360-day year. Except for the initial
Dividend Payment Date, the "Dividend Period" relating to a Dividend Payment
Date
will be the period from but not including the preceding Dividend Payment Date
through and including the related Dividend Payment Date.
B. For
the Dividend Period beginning on January 1, 2013 and for each Dividend Period
thereafter, dividends will accrue from Dividend Period to Dividend Period at
a
variable per annum rate, adjusted quarterly, equal to the Prime Rate (as
hereinafter defined) in effect on the first Business Day of each quarterly
Dividend Period. The amount of each dividend payable for any Dividend Period
beginning on or after January 1, 2013 shall be computed on the basis of the
actual number of days elapsed during such period and a 360-day
year.
As
used
herein the term “Prime Rate” shall mean the “Prime Rate” published by the Wall
Street Journal as the base rate on corporate loans posted by at least 75% of
the
nation’s 30 largest banks as the same may be changed from time to
time. If more than one Prime Rate is published, the highest rate
published shall be deemed the Wall Street Journal Prime Rate. If the
publishing of the Wall Street Journal Prime Rate shall be discontinued, then
the
Prime Rate shall be the corporate or similar rate (if any) published by the
Wall
Street Journal in replacement thereof based on similar base rates on corporate
loans or, if no such replacement index shall be published, the Prime Rate shall
be based on a published index which, in the Company’s sole determination, most
nearly corresponds to the Wall Street Journal Prime Rate. The Company
shall furnish written notice of any such change in the index to each holder
of
record of the Series A Non-Cumulative Preferred Stock.
C.
Each
such dividend shall be paid to the
holders of record of outstanding shares of the
Series A Non-Cumulative
Preferred
Stock as they appear in the
books and records of
the
Company
on such record date
as shall be fixed in advance by the Board of Directors, not to be earlier than
60
days
nor later than 10 days preceding
the applicable Dividend Payment Date. No dividends shall be declared or paid
or
set apart for payment on the Common Stock or any other class or series of stock
ranking junior to or (except as hereinafter provided) on a parity with the
Series A
Non-Cumulative
Preferred
Stock with respect to the payment of dividends unless dividends have been
declared and paid or set apart (or ordered by the Board of Directors to be
set
apart) for payment on the outstanding
Series A Non-Cumulative
Preferred
Stock in respect of the
then-current Dividend Period; provided, however, that the foregoing dividend
preference shall not be cumulative and shall not in any way create any claim
or
right in favor of the holders of
Series A Non-Cumulative
Preferred
Stock in the event that
the Company
shall
not have declared or paid or set
apart (or the Board of Directors shall not have ordered to be set apart)
dividends on the
Series A
Non-Cumulative
Preferred
Stock in respect of any prior Dividend Period.
D. Dividends
on the Series A
Non-Cumulative Preferred Stock are non-cumulative.
In the event that
the
Company
shall not pay
when
due
any one or more dividends
or any part
thereof on the
Series A
Non-Cumulative
Preferred
Stock, the holders of the
Series A Non-Cumulative
Preferred
Stock shall not have any claim
in respect of such non-payment so long as no dividend is paid on
the Common Stock or on
any
other
junior
or parity stock in violation of
the preceding sentence.
E. Notwithstanding
any other provision of this Certificate, the Board of Directors, in its
discretion, may choose to pay dividends on the Series A Non-Cumulative Preferred
Stock without the payment of any dividends on the Common Stock or any other
class or series of stock from time to time outstanding ranking junior to the
Series A Non-Cumulative Preferred Stock with respect to the payment of
dividends.
F. No
dividend shall be declared or paid or set apart for payment on any shares of
the
Series A Non-Cumulative Preferred Stock if at the same time any arrears or
default exists in the payment of dividends on any outstanding class or series
of
stock of the Company ranking prior to or on a parity with the Series A
Non-Cumulative Preferred Stock with respect to the payment of dividends. If
and
whenever dividends, having been declared, shall not have been paid in full,
as
aforesaid, on shares of the Series A Non-Cumulative Preferred Stock and on
the
shares of any other class or series of the Company’s capital stock ranking on a
parity with the Series A Non-Cumulative Preferred Stock with respect to the
payment of dividends, all such dividends that have been declared on shares
of
the Series A Non-Cumulative Preferred Stock and on the shares of any such other
class or series shall be paid pro rata, so that the respective amounts of
dividends paid per share on the Series A Non-Cumulative Preferred Stock and
on
such other class or series shall in all cases bear to each other the same ratio
that the respective amounts of dividends declared but unpaid per share on the
shares of the Series A Non-Cumulative Preferred Stock and on the shares of
such
other class or series bear to each other.
G. Holders
of shares of the Series A Non-Cumulative Preferred Stock shall not be entitled
to any dividends, in cash or in property, other than as herein provided and
shall not be entitled to interest, or any sum in lieu of interest, on or in
respect of any dividend payment.
3.
Optional Redemption
A. Subject
to (i) the notice provisions set forth in Section 3.B below, (ii) the receipt
by
the Company of the prior approval of the Board of Governors of the Federal
Reserve System (or its delegate, the Federal Reserve Bank of Boston), and (iii)
any further limitations which may be imposed by law or by any contract,
agreement or indenture by which the Company is bound, the Company may redeem
the
Series A Non-Cumulative Preferred Stock, in whole or in part, out of funds
legally available therefor, at the redemption price of $100,000 per share plus
an amount, determined in accordance with Section 2 above, equal to the amount
of
the dividend, if any, otherwise payable with respect to that portion of the
Dividend Period that ends on the date of redemption, accrued through and
including the date of such redemption, whether or not declared. If fewer than
all of the outstanding shares of the Series A Non-Cumulative Preferred Stock
are
to be redeemed, the Company shall select shares to be redeemed from the holders
of record of the outstanding shares not previously called for redemption on
a
pro rata basis (as nearly as possible) among such holders of the Series A
Non-Cumulative Preferred Stock. If the Company redeems the Series A
Non-Cumulative Preferred Stock, the dividend that would otherwise be payable
with respect to that portion of the Dividend Period ending on the date of
redemption will be included in the redemption price of the shares redeemed
and
will not be separately payable.
B. In
the event the Company shall redeem any or all of the Series A Non-Cumulative
Preferred Stock as aforesaid, notice of such redemption shall be given by the
Company by first class mail, postage prepaid, mailed neither less than 30 nor
more than 60 days prior to the redemption date, to each holder of record of
the
shares of the Series A Non-Cumulative Preferred Stock being redeemed, at such
holder's address as the same appears in the books and records of the Company.
Each such notice shall state the number of shares being redeemed from each
holder of record of the shares of the Series A Non-Cumulative Preferred Stock,
the redemption price, the redemption date and the place at which such holder's
certificate(s) representing shares of the Series A Non-Cumulative Preferred
Stock must be presented for cancellation or exchange, as the case may be, upon
such redemption. Failure to give notice, or any defect in the notice, to any
holder of the Series A Non-Cumulative Preferred Stock shall not affect the
validity of the proceedings for the redemption of shares of any other holder
of
the Series A Non-Cumulative Preferred Stock being redeemed.
C. Notice
having been mailed as aforesaid, from and after the redemption date specified
therein and upon payment of the consideration set forth in Section 3.A above,
said shares of the Series A Non-Cumulative Preferred Stock shall no longer
be
deemed to be outstanding, and all rights of the holders thereof as holders
of
the Series A Non-Cumulative Preferred Stock shall cease, with respect to shares
so redeemed, other than the right to receive the redemption price for such
redeemed shares.
D. Any
shares of the Series A Non-Cumulative Preferred Stock which shall have been
redeemed shall, after such redemption, no longer have the status of authorized,
issued or outstanding shares.
4.
No Voting Rights
Except
to
the limited extent set forth in Section 9.H below, the shares of the Series
A
Non-Cumulative Preferred Stock shall not have any voting powers, either general
or special.
5.
No Redemption, Conversion or Exchange Rights
The
holders of shares of the Series A Non-Cumulative Preferred Stock shall not
have
any right to require that the Company redeem any or all of such shares nor
any
right to convert such shares into or exchange such shares for any other class
or
series of capital stock or other securities or obligations of the
Company.
6.
No Preemptive Rights
No
holder
of the Series A Non-Cumulative Preferred Stock shall as such holder have any
preemptive right to purchase or subscribe for any other shares, rights, options
or other securities of any class or series of the Company which at any time
may
be sold or offered for sale by the Company.
7.
Liquidation Rights and Preference
A. Except
as otherwise set forth herein, upon the voluntary or involuntary dissolution,
liquidation or winding up of the Company, after payment of or provision for
the
liabilities of the Company and the expenses of such dissolution, liquidation
or
winding up, the holders of the outstanding shares of the Series A Non-Cumulative
Preferred Stock shall be entitled to receive, upon liquidation, out of the
assets of the Company available for distribution to stockholders, before any
payment or distribution shall be made on the Common Stock or any other class
or
series of stock of the Company ranking junior to the Series A Non-Cumulative
Preferred Stock, the amount of $100,000 per share plus an amount, determined
in
accordance with Section 2 above, equal to the dividend, if any, otherwise
payable for the portion of the then-current Dividend Period accrued through
and
including the date of payment in respect of such dissolution, liquidation or
winding up. The holders of the outstanding shares of any class or series of
the
Company’s stock then ranking on a parity with the Series A Non-Cumulative
Preferred Stock shall be entitled to receive, upon liquidation, out of the
assets of the Company available for distribution to stockholders, before any
such payment or distribution shall be made on the Common Stock or any other
class or series of the Company’s stock ranking junior to the Series A
Non-Cumulative Preferred Stock and to such parity stock, any corresponding
preferential amount to which the holders of such parity stock may, by the terms
thereof, be entitled; provided, however, that if the assets of the Company
available for distribution to stockholders shall be insufficient for the payment
of the amount which the holders of the outstanding shares of the Series A
Non-Cumulative Preferred Stock and the holders of the outstanding shares of
such
parity stock shall be entitled to receive upon such dissolution, liquidation
or
winding up of the Company as aforesaid, then, subject to subsection B of this
Section 7, all of the assets of the Company available for distribution to
stockholders shall be distributed to the holders of outstanding shares of the
Series A Non-Cumulative Preferred Stock and to the holders of outstanding shares
of such parity stock pro rata, so that the amounts so distributed to holders
of
the Series A Non-Cumulative Preferred Stock and to holders of such classes
or
series of such parity stock, respectively, shall bear to each other the same
ratio that the respective distributive amounts to which they are so entitled
bear to each other. After the payment of the aforesaid amounts to which they
are
entitled, the holders of outstanding shares of the Series A Non-Cumulative
Preferred Stock and the holders of outstanding shares of any such parity stock
shall not be entitled to any further participation in any distribution of assets
of the Company.
B. Notwithstanding
the foregoing, upon the dissolution, liquidation or winding up of the Company,
the holders of shares of the Series A Non-Cumulative Preferred Stock then
outstanding shall not be entitled to be paid any amounts to which such holders
are entitled pursuant to subsection A of this Section 7 unless and until the
holders of any classes or series of stock of the Company ranking prior upon
liquidation to the Series A Non-Cumulative Preferred Stock shall have been
paid
all amounts to which such classes or series are entitled pursuant to their
respective terms.
C. Neither
the sale of all or substantially all of the property or business of the Company,
nor the merger, consolidation or combination of the Company into or with any
other corporation or entity, nor any change in control of the Company shall
be
deemed to be a dissolution, liquidation or winding up for the purpose of this
Section 7.
8.
Additional Series of Preferred Stock
A. Subject
to Section 8.B, (i) the Board of Directors shall have the right at any time
in
the future to authorize, create and issue, by resolution or resolutions, one
or
more additional series of the Company’s preferred stock, and to determine and
fix the distinguishing characteristics and the relative rights, preferences,
privileges and other terms of the shares thereof; and (ii) any such class or
series of stock may rank prior to or on a parity with or junior to the Series
A
Non-Cumulative Preferred Stock as to dividends or upon liquidation or
otherwise.
B. Notwithstanding
anything
herein to the contrary, the
unanimous
consent
of the holders of
all of the outstanding
shares
of the Series A
Non-Cumulative Preferred Stock
shall
be required under Section 9.H(ii)
prior to
(i)
the
creation of any class or series of
preferred stock having
parity with, or
a
preference over
,
the
Series A Non-Cumulative Preferred
Stock
in
payment of dividends or upon
liquidation of the Company
or (ii) the authorization
of additional
shares of the Series A Non-Cumulative Preferred Stock
.
9.
Miscellaneous
A. Any
stock of any class or series of the Company’s preferred stock shall be deemed to
rank:
(i)
prior
to the shares of the Series A Non-Cumulative Preferred Stock, either as to
dividends or distributions upon liquidation, if the holders of such class or
series shall be entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Company, as the case may
be,
in preference or priority to the holders of shares of the Series A
Non-Cumulative Preferred Stock;
(ii)
on a
parity with shares of the Series A Non-Cumulative Preferred Stock, either as
to
dividends or distributions upon liquidation, whether or not the dividend rates
or amounts, dividend payment dates or redemption or liquidation prices per
share, if any, be different from those of the Series A Non-Cumulative Preferred
Stock, if the holders of such class or series shall be entitled to the receipt
of dividends or of amounts distributable upon dissolution, liquidation or
winding up of the Company, as the case may be, in proportion to their respective
dividend rates or amounts or liquidation prices, without preference or priority,
one over the other, as between the holders of such class or series and the
holders of shares of the Series A Non-Cumulative Preferred Stock;
and
(iii)
junior to shares of the Series A Non-Cumulative Preferred Stock, either as
to
dividends or distributions upon liquidation, if such class or series shall
be
Common Stock, or if the holders of shares of the Series A Non-Cumulative
Preferred Stock shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Company, as
the
case may be, in preference or priority to the holders of shares of such class
or
series.
B. The
Company and any agent of the Company may deem and treat the holder of a share
or
shares of Series A Non-Cumulative Preferred Stock, as shown in the Company's
books and records, as the absolute owner of such share or shares of Series
A
Non-Cumulative Preferred Stock for the purpose of receiving payment of dividends
in respect of such share or shares of Series A Non-Cumulative Preferred Stock
and for all other purposes whatsoever, and neither the Company nor any agent
of
the Company shall be affected by any notice to the contrary. All payments made
to or upon the order of any such person shall be valid and, to the extent of
the
sum or sums so paid, effectual to satisfy and discharge liabilities for moneys
payable by the Company on or with respect to any such share or shares of Series
A Non-Cumulative Preferred Stock.
C. The
shares of the Series A Non-Cumulative Preferred Stock, when duly issued, shall
be fully paid and non-assessable.
D. The
Series A Non-Cumulative Preferred Stock shall be issued, and shall be
transferable on the books of the Company, only in whole shares, it being
intended that no fractional interests in shares of Series A Non-Cumulative
Preferred Stock shall be created or recognized by the Company.
E. For
purposes of this Certificate, the term "the Company" means Community Bancorp.
and includes any successor thereto by operation of law or by reason of a merger,
consolidation or combination.
F.
This
Certificate and the respective
rights and obligations of
the Company
and the holders of the
Series A Non-Cumulative
Preferred Stock with respect to such
Series A
Non-Cumulative
Preferred
Stock shall be construed in accordance with and governed by the laws of the
State of
Vermont
.
G. Any
notice, demand or other communication which by any provision of this Certificate
is required or permitted to be given or served to or upon the Company shall
be
given or served in writing addressed (unless and until another address shall
be
provided to the stockholders in writing) to Community Bancorp., P.O. Box 259,
Derby, Vermont 05829, Attn: President. Such notice, demand or other
communication to or upon the Company shall be deemed to have been sufficiently
given or made only upon actual receipt of a writing by the Company. Any notice,
demand or other communication which by any provision of this Certificate is
required or permitted to be given or served by the Company hereunder may be
given or served by being deposited first class, postage prepaid, in the United
States mail addressed (i) to the holder as such holder's name and address may
appear at such time in the Company’s books and records, or (ii) if to a person
or entity other than a holder of record of the Series A Non-Cumulative Preferred
Stock, to such person or entity at such address as appears to the Company to
be
appropriate at such time. Such notice, demand or other communication shall
be
deemed to have been sufficiently given or made, for all purposes, upon
mailing.
H. The
Company, by or under the authority of the Board of Directors, may amend, alter,
supplement or repeal any provision of this Certificate or of the Company’s
Articles pursuant to the following terms and conditions:
(i)
Without the consent of the holders of the Series A Non-Cumulative Preferred
Stock, the Company may amend, alter, supplement or repeal any provision of
this
Certificate to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or
to
make any other provisions with respect to matters or questions arising under
this Certificate, provided that such action shall not materially and adversely
affect the interests of the holders of the Series A Non-Cumulative Preferred
Stock.
(ii)
The
unanimous consent of the holders of all of the shares of the Series A
Non-Cumulative Preferred Stock at the time outstanding, given in person or
by
proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of the Series A Non-Cumulative Preferred Stock
shall
vote together as a class, shall be necessary for authorizing, effecting or
validating the amendment, alteration, supplementation or repeal of the
provisions of this Certificate or of the Company’s Articles if such amendment,
alteration, supplementation or repeal would (i) increase the number of
authorized shares of the Series A Non-Cumulative Preferred Stock; (ii) create
a
series or class of shares that would have parity with, or preference over,
the
Series A Non-Cumulative Preferred Stock in the payment of dividends or upon
liquidation of the Company, or (iii) otherwise materially and adversely affect
the powers, preferences, rights, privileges, qualifications, limitations,
restrictions, terms or conditions of the Series A Non-Cumulative Preferred
Stock. The creation and issuance of any other class or series of capital stock
junior to the Series A Non-Cumulative Preferred Stock, or the issuance of
additional shares of the Company’s common stock, shall not be deemed to
constitute such an amendment, alteration, supplementation or
repeal.
(iii)
Holders of the Series A Non-Cumulative Preferred Stock shall be entitled to
one
vote per share on matters on which their consent is required pursuant to
subparagraph (ii), of subsection H of this Section 9. In connection with any
meeting of such holders, the Board of Directors shall fix a record date, neither
earlier than 60 days nor later than 10 days prior to the date of such meeting,
and holders of record of shares of the Series A Non-Cumulative Preferred Stock
on such record date shall be entitled to notice of and to vote at any such
meeting and any adjournment, to the extent provided herein.
The
Board
of Directors, or such person or persons as it may designate, may establish
reasonable rules and procedures as to the solicitation of the consent of holders
of the Series A Non-Cumulative Preferred Stock at any such meeting or otherwise,
not inconsistent with applicable law.
I. RECEIPT
AND ACCEPTANCE
OF A SHARE OR SHARES OF THE SERIES A NON-CUMULATIVE PREFERRED STOCK BY OR ON
BEHALF OF A HOLDER SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER
(AND ALL OTHERS HAVING BENEFICIAL OWNERSHIP OF SUCH SHARE OR SHARES) OF
ALL
OF THE TERMS AND
PROVISIONS OF THIS CERTIFICATE. NO SIGNATURE OR OTHER FURTHER MANIFESTATION
OF
ASSENT TO THE TERMS AND PROVISIONS OF THIS CERTIFICATE SHALL BE NECESSARY FOR
ITS OPERATION OR EFFECT AS BETWEEN THE COMPANY AND THE HOLDER (AND ALL SUCH
OTHERS).
IN
WITNESS WHEREOF, I have hereunto set my hand and the seal of Community Bancorp.
as of this 27th day of December, 2007.
[Seal]
/s/
Christianne
Bumps
Christianne
Bumps, Secretary