As filed with the Securities and Exchange Commission on April 6, 1999
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
UNDER THE SECURITIES ACT OF 1933
(Exact name of Registrant as specified in its Charter)
VERMONT 6022 03-0228404
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Classification Code) Identification No.)
Two Burlington Square
Burlington, Vermont 05401
(Address, Including Zip Code, and Telephone Number, Including
Area Code,of Registrant's Principal Executive Office)
PAUL A. PERRAULT
Chairman of the Board and President
Two Burlington Square
Burlington, Vermont 05401
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
WILLIAM P. MAYER, ESQ. CHRISTOPHER CABOT, ESQ.
Goodwin, Procter & Hoar LLP STEPHEN J. COUKOS, ESQ.
Exchange Place Sullivan & Worcester LLP
Boston, MA 02109 One Post Office Square
(617) 570-1000 Boston, MA 02109
Approximate date of commencement of proposed sale to the public: Upon consummation of the merger (the "Merger") of Chittenden Acquisition Subsidiary, Inc., a wholly owned subsidiary of Chittenden Corporation ("Chittenden"), with and into Vermont Financial Services Corp. ("Vermont Financial"), pursuant to an Agreement and Plan of Merger, dated as of December 16, 1998, which is described in the enclosed Joint Proxy Statement/Prospectus. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [_] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
CALCULATION OF REGISTRATION FEE
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered(1) Per Unit Offering Price Fee
Common Stock, par value $1.00 per share........................ 15,496,225(2) (3) $401,888,070.80(4) $37,790(5)
(1) This Registration Statement also relates to such additional number of shares of the Registrant's common stock as may be issuable as a result of a stock dividend, stock split, split-up, recapitalization or other similar event.
(2) Represents the estimated maximum number of shares of Chittenden common stock, par value $1.00 per share, to be issued to stockholders of Vermont Financial in connection with the Merger. (3) Not applicable.
(4) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(f)(1) and based on the average of the high and low sales price per share of Vermont Financial common stock, par value $1.00 per share, on April 5, 1999 on the NASDAQ National Market, multiplied by an aggregate of 14,482,453 shares of Vermont Financial common stock to be acquired by Chittenden. (5) In accordance with Rule 457(b), the registration fee of $111,725 has been reduced by $73,935, which was previously paid by the Registrant with respect to the transaction described herein pursuant to Section 14(g) of the Securities Exchange Act of 1934, as amended.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
The name of the Corporation is Chittenden Corporation.
REGISTERED AGENT AND OFFICE
The Registered Agent of the Corporation is F. Sheldon Prentice, Senior Vice President, General Counsel and Secretary, who is located at the Registered Office of the Corporation at Two Burlington Square, Burlington, Vermont 05401.
PERIOD OF DURATION
The period of duration of the Corporation shall be perpetual.
The Corporation is organized for the purposes of (i) buying, selling, investing in, holding and dealing in property of every nature and description, real and personal, tangible and intangible; (ii) acquiring, investing in or holding stock of any subsidiary enterprise permitted under the Bank Holding Company Act of 1956, and subsequent amendments thereto; and (iii) otherwise engaging in any other business which may be lawfully carried on by a corporation organized under the laws of the State of Vermont.
QUORUM REQUIREMENT FOR STOCKHOLDER MEETINGS
Not less than a majority of the outstanding shares of the stock of the Corporation present in person or by proxy shall constitute a quorum for the transaction of business at any regular or special meeting of the stockholders of the Corporation.
The aggregate number of shares which the Corporation shall have authority to issue is 1,000,000 shares of preferred stock, with a par value of $100.00, and 60,000,000 shares of common stock, with a par value of $1.00. The Board of Directors of the Corporation is hereby expressly authorized to divide the preferred stock into series, and, within the limitations provided by law, to fix and determine by resolution the designation, the number of shares, and the relative rights and preferences of any series so established.
NUMBER AND TERM OF DIRECTORS
Section 1. The authorized number of directors of the Corporation (exclusive of directors, if any, to be elected by holders of preferred stock of the Corporation) shall be determined by resolution duly adopted by the Board of Directors, and may be increased or decreased, within the limitations specified herein, from time to time by resolution, duly adopted by the Board of Directors; provided, however, that no decrease in the number of directors shall have the effect of shortening the term of any incumbent director.
Section 2. The Board of Directors shall be divided into three categories, designated Category I, Category II, and Category III, as nearly equal in number as possible, and the term of office of directors of one category shall expire at each annual meeting of the stockholders, and in all cases as to each director, until a successor shall be elected and shall quality, or until an earlier resignation, removal from office, death or incapacity. Additional directors resulting from an increase in the number of directors shall be apportioned among the categories as equally as possible. At each annual meeting of stockholders following the adoption of this provision, the number of directors equal to the number of directors of the category whose terms expire at the time of such meeting (or, if less,
the number of directors properly nominated and qualified for election) shall be elected to hold office until the third succeeding annual meeting of stockholders after their election.
Section 3. Subject to the rights, if any, of the holders of any series of stock to elect directors and to remove any director whom such holders have the right to elect, any director (including persons elected by directors to fill vacancies in the Board of Directors) may be removed from office by stockholders (a) only with cause and (b) only if the number of votes cast to remove the director exceeds the number of votes cast not to remove the director. A director may be removed by the stockholders only at a meeting called for the purpose of removing the director and the meeting notice must state that the purpose, or one of the purposes, of the meeting is the removal of the director. For purposes of this Article, "cause," with respect to the removal of any director, shall mean only (i) conviction of a felony, (ii) declaration of unsound mind by order of a court, (iii) gross dereliction of duty, (iv) commission of any act involving moral turpitude or (v) commission of an act that constitutes intentional misconduct or a knowing violation of law if such action in either event results both in an improper substantial personal benefit to such director and a material injury to the Corporation.
Section 1. The affirmative vote of at least two-thirds (66 2/3%) of the Continuing Directors, together with the affirmative vote of the holders of at least two-thirds (66 2/3%) of the outstanding shares entitled to vote thereon (as well as the affirmative vote of the holders of at least two-thirds (66 2/3%) of the shares of any class or series of shares entitled to vote thereon as a class), shall be required for any of the following Business Combinations:
(a) any merger or consolidation of the Corporation or any Subsidiary into or with a Related Person or its Affiliate, or any other corporation which, after such merger or consolidation, would be an Affiliate of a Related Person, or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition by the Corporation, in one or a series of transactions, to or with any Related Person or its Affiliate of all, or substantially all, of the assets of the Corporation or any Subsidiary, or
(c) the issuance or transfer by the Corporation or any Subsidiary, in one or a series of transactions, of a majority of its voting shares to a Related Person or its Affiliate, or
(d) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or
(e) any reclassification of securities, recapitalization, reorganization, merger or consolidation of the Corporation with any of its Subsidiaries or any transaction that has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary that is directly or indirectly owned by any Related Person.
Section 2. The two-thirds (66 2/3%) vote of the Continuing Directors required by Section 1 of this Article shall not be applicable to any Business Combination not with or involving any Related Person or its Affiliate, in which event such Business Combination shall require only such affirmative vote as is required by law and any other provision of the Articles of Incorporation and the By-Laws of the Corporation.
Section 3. A majority of the Continuing Directors of the Corporation, on the basis of information known to them, shall have the power and duty to determine for the purposes of this Article all questions arising hereunder, including whether a Person is a Related Person or an Affiliate or Associate of another, the number of voting shares beneficially owned by any Person, the fair market value of consideration per share offered holders of the Corporation's Common Stock and the aggregate value of the securities or assets of the Corporation or any Subsidiary. The calculation of a minimum price per share to be received by stockholders shall require appropriate adjustments for capital changes, including without limitation, stock splits, stock dividends and reverse stock splits.
Section 4. Nothing contained in this Article shall be construed to relieve any Related Person of any fiduciary obligation imposed by law.
Section 5. For the purpose of this Article and other articles using similar terminology, the following definitions shall apply:
(a) "Person" means any individual, firm, partnership, corporation or other entity, or any combination of them acting together.
(b) "Related Person", in respect of any Business Combination, means any Person (other than the Corporation or any Subsidiary) which, together with its Affiliates or Associates, owns of record or beneficially, directly or indirectly, more than fifteen percent (15%) of the outstanding voting stock of the Corporation, or is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the owner, of record or beneficially, directly, or indirectly, of more than fifteen percent (15%) of the outstanding voting stock of the Corporation.
For the purpose of determining whether a Person is a Related Person, "beneficial ownership" of voting stock shall include (i) all shares of stock which such Person has the capability to control or influence the voting power thereof and (ii) all shares of stock which such
Person has the immediate or future right to acquire, pursuant to any agreement or understanding, or upon the exercise of conversion rights, exchange rights, warrants, options or otherwise.
(c) "Affiliate" means any Person that directly or indirectly controls, or is controlled by, or is under common control with another Person.
(d) "Associate" means any officer, trustee, partner or directors or beneficial owner of more than fifteen percent (15%) of any class of equity security, of a Related Person or its Affiliates.
(e) "Continuing Director" means a member of the Board of Directors who was either elected prior to the date a Related Person became a Related Person, or was recommended to succeed a Continuing Director by a majority of the then Continuing Directors.
(f) "Subsidiary" means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Corporation, provided, however, that for the purposes of the definition of "Related Person" set forth in subsection (b) of this Section 5, the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
Section 6. Unless an affirmative vote of at least 80% of the outstanding shares entitled to vote thereon, exclusive of the shares owned by any Related Person, determine otherwise, notwithstanding any approval received for a proposed Business Combination under the provisions of ARTICLE VIII, the Corporation shall not enter into any Business Combination with a Related Person or its Affiliates or Associates, unless the following condition shall be met:
The aggregate amount of cash and the fair market value of consideration other than cash (as of the date of a binding agreement for the consummation of said Business Combination) to be received per share by holders of Common Stock of the Corporation shall be at least equal to the higher of:
(i) the highest per share price (including brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Related Person or its Affiliates or Associates in purchasing any of the Corporation's Common Stock (a) within the two-year period immediately prior to the date of the proposal of the Business Combination (the "Proposal Date") or (b) in the transaction in which it became a Related Person, whichever is higher; OR
(ii) the fair market value per share of the Corporation's Common Stock on the Proposal Date.
Section 7. Any amendment, alteration or repeal of ARTICLE VIII of these Articles of Incorporation shall require the affirmative vote of at least two- thirds (66 2/3%) of the Continuing Directors, together with the affirmative vote of the holders of at least two-thirds (66 2/3%) of the outstanding shares entitled to vote thereon (as well as the affirmative vote of the holders of at least two-thirds (66 2/3%) of the shares of any class or series of shares entitled to vote thereon as a class).
LIMITATION OF LIABILITY
To the fullest extent permitted under the Vermont Business Corporation Act (the "VBCA") as in effect on the date of filing these Articles or as the VBCA is thereafter amended from time to time, no director shall be liable to the Corporation or its stockholders for money damages for any action taken, or any failure to take action, solely as a director, based on a failure to discharge his or her duties in accordance with Section 8.30 of the VBCA. Neither the amendment or the repeal of this Article, nor the adoption of any other provision in the Corporation's Articles inconsistent with this Article, shall eliminate or reduce the protection afforded by this Article to a director of the Corporation with respect to any matter which occurred, or any cause of action, suit or claim which but for this Article would have accrued or arisen, prior to such amendment, repeal or adoption.
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