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CERTIFICATE OF DESIGNATIONS
OF
FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES D
OF
SOUTHERN BANCORP. INC.
Southern Bancorp. Inc., a corporation organized and existing under the laws of the State
of Delaware (the “Issuer”), in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware thereof, does hereby certify:
The board of directors of the Issuer (the “Board of Directors”) or an applicable committee
of the Board of Directors, in accordance with the certificate of incorporation and bylaws of the
Issuer and applicable law, adopted the following resolution on ________, 2010 creating a series
of __________ shares of Preferred Stock of the Issuer designated as “Fixed Rate Cumulative
Perpetual Preferred Stock, Series D”.
RESOLVED, that pursuant to the provisions of the certificate of incorporation and the
bylaws of the Issuer and applicable law, a series of Preferred Stock, par value $1.00 per share, of
the Issuer be and hereby is created, and that the designation and number of shares of such series,
and the voting and other powers, preferences and relative, participating, optional or other rights,
and the qualifications, limitations and restrictions thereof, of the shares of such series, are as
follows:
Part 1. Designation and Number of Shares. There is hereby created out of the authorized
and unissued shares of preferred stock of the Issuer a series of preferred stock designated as the
“Fixed Rate Cumulative Perpetual Preferred Stock, Series D” (the “Designated Preferred
Stock”). The authorized number of shares of Designated Preferred Stock shall be ____.
Part 2. Standard Provisions. The Standard Provisions contained in Schedule A attached
hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of
this Certificate of Designations to the same extent as if such provisions had been set forth in full
herein.
Part 3. Definitions. The following terms are used in this Certificate of Designations
(including the Standard Provisions in Schedule A hereto) as defined below:
(a)
“Common Stock” means the common stock, par value $1.00 per share, of the
Issuer.
(b)
Dividend Payment Date” means February 15, May 15, August 15 and November
15 of each year.
(c)
“Junior Stock” means the Common Stock and any other class or series of stock of
the Issuer the terms of which expressly provide that it ranks junior to Designated Preferred Stock
as to dividend rights and/or as to rights on liquidation, dissolution or winding up of the Issuer.
SPA – UST Sequence No. 490
(d)
“Liquidation Amount” means $1,000 per share of Designated Preferred Stock.
(e)
“Minimum Amount” means $___________.
(f)
“Parity Stock” means any class or series of stock of the Issuer (other than
Designated Preferred Stock) the terms of which do not expressly provide that such class or series
will rank senior or junior to Designated Preferred Stock as to dividend rights and/or as to rights
on liquidation, dissolution or winding up of the Issuer (in each case without regard to whether
dividends accrue cumulatively or non-cumulatively). Without limiting the foregoing, Parity
Stock shall include the Issuer’s Noncumulative Perpetual Preferred Stock Series A, Series B,
Series C and Series E.
(g)
“Signing Date” means _________, 2010.
Part 4. Certain Voting Matters. Holders of shares of Designated Preferred Stock will be
entitled to one vote for each such share on any matter on which holders of Designated Preferred
Stock are entitled to vote, including any action by written consent.
[Remainder of Page Intentionally Left Blank]
SPA – UST Sequence No. 490
IN WITNESS WHEREOF, Southern Bancorp. Inc. has caused this Certificate of
Designations to be signed by Phillip N. Baldwin, its Chief Executive Officer, this ____ day of
_________, 2010.
SOUTHERN BANCORP. INC.
By: ________________________________
Name: Phillip N. Baldwin
Title: Chief Executive Officer
F:\clients\29092\9092.001\Documents\SPA – Certificate of Designations.doc
SPA – UST Sequence No. 490
Schedule A
STANDARD PROVISIONS
Each share of Designated Preferred Stock shall be
Section 1.
General Matters.
identical in all respects to every other share of Designated Preferred Stock. The Designated
Preferred Stock shall be perpetual, subject to the provisions of Section 5 of these Standard
Provisions that form a part of the Certificate of Designations. The Designated Preferred Stock
shall rank equally with Parity Stock and shall rank senior to Junior Stock with respect to the
payment of dividends and the distribution of assets in the event of any dissolution, liquidation or
winding up of the Issuer.
Section 2.
Standard Definitions. As used herein with respect to Designated Preferred
Stock:
(a)
“Affiliate” means, with respect to any person, any person directly or indirectly
controlling, controlled by or under common control with, such other person. For purposes of this
definition, “control” (including, with correlative meanings, the terms “controlled by” and “under
common control with”) when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management and/or policies of such person,
whether through the ownership of voting securities by contract or otherwise.
(b)
“Applicable Dividend Rate” means (i) until the first day of the first Dividend
Period commencing on or after the eighth anniversary of the Original Issue Date, 2% per annum,
provided, however, that (A) if a CDFI Event shall have occurred and it or any other CDFI Event
is continuing at all times, from and after the 180th day after the date on which the first CDFI
Event occurred until the date on which no CDFI Events are continuing, the Applicable Dividend
Rate shall be 5% per annum, and (B) if a CDFI Event shall have occurred and it or any other
CDFI Event is continuing at all times, from and after the 270th day after the date on which the
first CDFI Event occurred until the date on which no CDFI Events are continuing, 9% per annum
and (ii) for any other Dividend Period, 9% per annum.
(c)
“Appropriate Federal Banking Agency” means the “appropriate Federal banking
agency” with respect to the Issuer as defined in Section 3(q) of the Federal Deposit Insurance
Act (12 U.S.C. Section 1813(q)), or any successor provision.
(d)
“Business Combination” means a merger, consolidation, statutory share exchange
or similar transaction that requires the approval of the Issuer’s stockholders.
(e)
“Business Day” means any day except Saturday, Sunday and any day on which
banking institutions in the State of New York or the District of Columbia generally are
authorized or required by law or other governmental actions to close.
(f)
“Bylaws” means the bylaws of the Issuer, as they may be amended from time to
time.
SPA – UST Sequence No. 490
(g)
“CDFI Events” means the failure by each Certified Entity at any time while the
Designated Preferred Stock is outstanding to (i) be certified by the Community Development
Financial Institution Fund of the United States Department of Treasury as a regulated community
development financial institution; (ii) together with all of its Affiliates collectively meet the
eligibility requirements of 12 C.F.R. 1805.200(b), (iii) have a primary mission of promoting
community development, as may be determined by the United States Department of the Treasury
from time to time, based on criteria set forth in 12 C.F.R. 1805.201(b)(1); (iv) provide Financial
Products, Development Services, and/or other similar financing as a predominant business
activity in arm’s-length transactions; (v) serve a Target Market by serving one or more
Investment Areas and/or Targeted Populations as may be determined by the United States
Department of the Treasury from time to time, substantially in the manner set forth in 12 C.F.R.
1805.201(b)(3); (vi) provide Development Services in conjunction with its Financial Products,
directly, through an Affiliate or through a contract with a third-party provider; (vii) maintain
accountability to residents of the applicable Investment Area(s) or Targeted Population(s)
through representation on its governing board of directors or otherwise; and (viii) remain a nongovernmental entity which is not an agency or instrumentality of the United States of America,
or any State or political subdivision thereof, as described in 12 C.F.R. 1805. 201(b)(6) and within
the meaning of any supplemental regulations or interpretations of 12 C.F.R. 1805.201(b)(6) or
such supplemental regulations published by the Fund. For the avoidance of doubt, a CDFI Event
shall not have occurred so long as at least one Certified Entity satisfies the requirements set forth
in clauses (i) through (viii) of the preceding sentence, even if other Certified Entities fail to
satisfy such requirements. Notwithstanding any other provision hereof, as used in this definition,
the terms “Affiliates”; “Financial Products”; “Development Services”; “Target Market”;
“Investment Areas”; and “Targeted Populations” have the meanings ascribed to such terms in 12
C.F.R. 1805.104. A CDFI Event may be waived in writing by the holders of a majority of the
Designated Preferred Stock then outstanding.
(h)
“Certificate of Designations” means the Certificate of Designations or comparable
instrument relating to the Designated Preferred Stock, of which these Standard Provisions form a
part, as it may be amended from time to time.
(i)
“Certified Entity” means the Issuer or, if the Issuer itself has not been certified by
the Community Development Financial Institution Fund as a regulated community development
financial institution (“CDFI”), each Affiliate of the Issuer that has been certified by the CDFI
and is specified on Schedule A of the that certain letter agreement by and between Issuer and the
United States Department of the Treasury.
(j)
“Charter” means the Issuer’s certificate or articles of incorporation, articles of
association, or similar organizational document.
(k)
“Dividend Period” has the meaning set forth in Section 3(a).
(l)
“Dividend Record Date” has the meaning set forth in Section 3(a).
(m)
“GAAP” means the generally accepted accounting principles in the United States.
SPA – UST Sequence No. 490
(n)
“Issuer Subsidiary” means any subsidiary of the Issuer.
(o)
“Liquidation Preference” has the meaning set forth in Section 4(a).
(p)
“Original Issue Date” means the date on which shares of Designated Preferred
Stock are first issued.
(q)
“Preferred Director” has the meaning set forth in Section 7(b).
(r)
“Preferred Stock” means any and all series of preferred stock of the Issuer,
including the Designated Preferred Stock.
(s)
“Share Dilution Amount” means the increase in the number of diluted shares
outstanding (determined in accordance with GAAP, and as measured from the date of the
Issuer’s most recent consolidated financial statements prior to the Signing Date) resulting from
the grant, vesting or exercise of equity-based compensation to employees and equitably adjusted
for any stock split, stock dividend, reverse stock split, reclassification or similar transaction.
(t)
“Standard Provisions” mean these Standard Provisions that form a part of the
Certificate of Designations relating to the Designated Preferred Stock.
(u)
“Voting Parity Stock” means, with regard to any matter as to which the holders of
Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and 7(b) of these
Standard Provisions that form a part of the Certificate of Designations, any and all series of
Parity Stock upon which like voting rights have been conferred and are exercisable with respect
to such matter.
Section 3.
Dividends.
(a)
Rate. Holders of Designated Preferred Stock shall be entitled to receive, on each
share of Designated Preferred Stock if, as and when declared by the Board of Directors or any
duly authorized committee of the Board of Directors, but only out of assets legally available
therefor, cumulative cash dividends with respect to each Dividend Period (as defined below) at a
rate per annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount per share of
Designated Preferred Stock and (ii) the amount of accrued and unpaid dividends for any prior
Dividend Period on such share of Designated Preferred Stock, if any. Such dividends shall begin
to accrue and be cumulative from the Original Issue Date, shall compound on each subsequent
Dividend Payment Date (i.e., no dividends shall accrue on other dividends unless and until the
first Dividend Payment Date for such other dividends has passed without such other dividends
having been paid on such date) and shall be payable quarterly in arrears on each Dividend
Payment Date, commencing with the first such Dividend Payment Date to occur at least 20
calendar days after the Original Issue Date. In the event that any Dividend Payment Date would
otherwise fall on a day that is not a Business Day, the dividend payment due on that date will be
postponed to the next day that is a Business Day and no additional dividends will accrue as a
result of that postponement. The period from and including any Dividend Payment Date to, but
SPA – UST Sequence No. 490
excluding, the next Dividend Payment Date is a “Dividend Period”, provided that the initial
Dividend Period shall be the period from and including the Original Issue Date to, but excluding,
the next Dividend Payment Date.
Dividends that are payable on Designated Preferred Stock in respect of any Dividend
Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The
amount of dividends payable on Designated Preferred Stock on any date prior to the end of a
Dividend Period, and for the initial Dividend Period, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months, and actual days elapsed over a 30-day month.
Dividends that are payable on Designated Preferred Stock on any Dividend Payment Date
will be payable to holders of record of Designated Preferred Stock as they appear on the stock
register of the Issuer on the applicable record date, which shall be the 15th calendar day
immediately preceding such Dividend Payment Date or such other record date fixed by the
Board of Directors or any duly authorized committee of the Board of Directors that is not more
than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record
Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether
or not such day is a Business Day.
Holders of Designated Preferred Stock shall not be entitled to any dividends, whether
payable in cash, securities or other property, other than dividends (if any) declared and payable
on Designated Preferred Stock as specified in this Section 3 (subject to the other provisions of
the Certificate of Designations).
(b)
Priority of Dividends. So long as any share of Designated Preferred Stock remains
outstanding, no dividend or distribution shall be declared or paid on the Common Stock or any
other shares of Junior Stock (other than dividends payable solely in shares of Common Stock) or
Parity Stock, subject to Section 3(c) below and the immediately following paragraph in the case
of Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall be, directly or
indirectly, purchased, redeemed or otherwise acquired for consideration by the Issuer or any of
its subsidiaries unless all accrued and unpaid dividends for all past Dividend Periods, including
the latest completed Dividend Period (including, if applicable as provided in Section 3(a) above,
dividends on such amount), on all outstanding shares of Designated Preferred Stock have been or
are contemporaneously declared and paid in full (or have been declared and a sum sufficient for
the payment thereof has been set aside for the benefit of the holders of shares of Designated
Preferred Stock on the applicable record date).
When dividends are not paid (or declared and a sum sufficient for payment thereof set
aside for the benefit of the holders thereof on the applicable record date) on any Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within a Dividend Period related to
such Dividend Payment Date) in full upon Designated Preferred Stock and any shares of Parity
Stock, all dividends declared on Designated Preferred Stock and all such Parity Stock and
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment date falling
within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so
SPA – UST Sequence No. 490
that the respective amounts of such dividends declared shall bear the same ratio to each other as
all accrued and unpaid dividends per share on the shares of Designated Preferred Stock
(including, if applicable as provided in Section 3(a) above, dividends on such amount) and all
Parity Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having
dividend payment dates different from the Dividend Payment Dates, on a dividend payment date
falling within the Dividend Period related to such Dividend Payment Date) (subject to their
having been declared by the Board of Directors or a duly authorized committee of the Board of
Directors out of legally available funds and including, in the case of Parity Stock that bears
cumulative dividends, all accrued but unpaid dividends) bear to each other. If the Board of
Directors or a duly authorized committee of the Board of Directors determines not to pay any
dividend or a full dividend on a Dividend Payment Date, the Issuer will provide written notice to
the holders of Designated Preferred Stock prior to such Dividend Payment Date.
Subject to the foregoing and Section 3(c) below, and not otherwise, such dividends
(payable in cash, securities or other property) as may be determined by the Board of Directors or
any duly authorized committee of the Board of Directors may be declared and paid on any
securities, including Common Stock and other Junior Stock, from time to time out of any funds
legally available for such payment, and holders of Designated Preferred Stock shall not be
entitled to participate in any such dividends.
(c)
Restriction on Dividends.
So long as any share of Designated Preferred Stock
remains outstanding, neither the Issuer nor any Issuer Subsidiary shall, declare or pay any
dividend or make any distribution on Common Stock, Junior Stock, Parity Stock or other capital
stock or other equity securities of any kind of the Issuer or any Issuer Subsidiary (other than (i)
regular quarterly cash dividends of not more than the amount of the last quarterly cash dividend
per share declared or, if lower, announced to its holders of Common Stock an intention to
declare, on the Common Stock prior to January 16, 2009, as adjusted for any stock split, stock
dividend, reverse stock split, reclassification or similar transaction, (ii) dividends payable solely
in shares of Common Stock, (iii) regular dividends on shares of preferred stock in accordance
with the terms thereof and which are permitted under the terms of this Section 3, (iv) dividends
or distributions by any wholly-owned Issuer Subsidiary, (v) dividends or distributions by any
Issuer Subsidiary required pursuant to binding contractual agreements entered into prior to
January 16, 2009, or (vi) in the case of pari passu Preferred Stock, dividends payable on a pro
rata basis with Designated Preferred Stock), unless all accrued and unpaid dividends for all past
Dividend Periods, including the latest completed Dividend Period (including, if applicable as
provided in Section 3(a) above, dividends on such amount), on all outstanding shares of
Designated Preferred Stock have been or are contemporaneously declared and paid in full (or
have been declared and a sum sufficient for the payment thereof has been set aside for the benefit
of the holders of shares of Designated Preferred Stock on the applicable record date).
So long as any share of Designated Preferred Stock remains outstanding, neither the
Issuer nor any Issuer Subsidiary shall, (x) pay any per share dividend or distribution on Common
Stock, Junior Stock, Parity Stock or other capital stock or other equity securities of any kind of
the Issuer at a rate that is in excess of 100% of the aggregate per share dividends and
distributions for the immediately prior fiscal year (other than regular dividends on shares of
preferred stock in accordance with the terms thereof and which are permitted under the terms of
SPA – UST Sequence No. 490
this Section 3); provided that no increase in the aggregate amount of dividends or distributions
on Common Stock shall be permitted for any twelve (12) month period, including, without
limitation, as a result of any dividends or distributions paid in shares of Common Stock, any
stock split or any similar transaction or (y) pay aggregate dividends or distributions on capital
stock or other equity securities of any kind of any Issuer Subsidiary that is in excess of 100% of
the aggregate dividends and distributions paid for the immediately prior fiscal year (other than in
the case of this clause (y), (1) regular dividends on shares of preferred stock in accordance with
the terms thereof and which are permitted under the terms of this Section 3, (2) dividends or
distributions by any wholly-owned Issuer Subsidiary, (3) dividends or distributions by any Issuer
Subsidiary required pursuant to binding contractual agreements entered into prior to January 16,
2009 or (4) dividends or distributions on newly issued shares of capital stock for cash or other
property).
Section 4.
Liquidation Rights.
(a)
Voluntary or Involuntary Liquidation.
In the event of any liquidation,
dissolution or winding up of the affairs of the Issuer, whether voluntary or involuntary, holders
of Designated Preferred Stock shall be entitled to receive for each share of Designated Preferred
Stock, out of the assets of the Issuer or proceeds thereof (whether capital or surplus) available for
distribution to stockholders of the Issuer, subject to the rights of any creditors of the Issuer,
before any distribution of such assets or proceeds is made to or set aside for the holders of
Common Stock and any other stock of the Issuer ranking junior to Designated Preferred Stock as
to such distribution, payment in full in an amount equal to the sum of (i) the Liquidation Amount
per share and (ii) the amount of any accrued and unpaid dividends (including, if applicable as
provided in Section 3(a) above, dividends on such amount), whether or not declared, to the date
of payment (such amounts collectively, the “Liquidation Preference”).
(b)
Partial Payment.
If in any distribution described in Section 4(a) above the
assets of the Issuer or proceeds thereof are not sufficient to pay in full the amounts payable with
respect to all outstanding shares of Designated Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Issuer ranking equally with Designated Preferred
Stock as to such distribution, holders of Designated Preferred Stock and the holders of such other
stock shall share ratably in any such distribution in proportion to the full respective distributions
to which they are entitled.
If the Liquidation Preference has been paid in full to
(c)
Residual Distributions.
all holders of Designated Preferred Stock and the corresponding amounts payable with respect of
any other stock of the Issuer ranking equally with Designated Preferred Stock as to such
distribution has been paid in full, the holders of other stock of the Issuer shall be entitled to
receive all remaining assets of the Issuer (or proceeds thereof) according to their respective rights
and preferences.
(d)
Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this
Section 4, the merger or consolidation of the Issuer with any other corporation or other entity,
including a merger or consolidation in which the holders of Designated Preferred Stock receive
cash, securities or other property for their shares, or the sale, lease or exchange (for cash,
SPA – UST Sequence No. 490
securities or other property) of all or substantially all of the assets of the Issuer, shall not
constitute a liquidation, dissolution or winding up of the Issuer.
Section 5.
Redemption.
(a)
Optional Redemption.
The Issuer, at its option, subject to the approval of
the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any time and from
time to time, out of funds legally available therefor, the shares of Designated Preferred Stock at
the time outstanding, upon notice given as provided in Section 5(c) below, at a redemption price
equal to the sum of (i) the Liquidation Amount per share and (ii) any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above, dividends on such amount)
(regardless of whether any dividends are actually declared) to, but excluding, the date fixed for
redemption.
The redemption price for any shares of Designated Preferred Stock shall be payable on
the redemption date to the holder of such shares against surrender of the certificate(s) evidencing
such shares to the Issuer or its agent. Any declared but unpaid dividends payable on a
redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall
not be paid to the holder entitled to receive the redemption price on the redemption date, but
rather shall be paid to the holder of record of the redeemed shares on such Dividend Record Date
relating to the Dividend Payment Date as provided in Section 3 above.
The Designated Preferred Stock will not be subject to any
(b)
No Sinking Fund.
mandatory redemption, sinking fund or other similar provisions. Holders of Designated Preferred
Stock will have no right to require redemption or repurchase of any shares of Designated
Preferred Stock.
(c)
Notice of Redemption. Notice of every redemption of shares of Designated
Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of
record of the shares to be redeemed at their respective last addresses appearing on the books of
the Issuer. Such mailing shall be at least 30 days and not more than 60 days before the date fixed
for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed
to have been duly given, whether or not the holder receives such notice, but failure duly to give
such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares
of Designated Preferred Stock designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Designated Preferred Stock.
Notwithstanding the foregoing, if shares of Designated Preferred Stock are issued in
book-entry form through The Depository Trust Company or any other similar facility, notice of
redemption may be given to the holders of Designated Preferred Stock at such time and in any
manner permitted by such facility. Each notice of redemption given to a holder shall state: (1)
the redemption date; (2) the number of shares of Designated Preferred Stock to be redeemed and,
if less than all the shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; and (4) the place or places where
certificates for such shares are to be surrendered for payment of the redemption price.
SPA – UST Sequence No. 490
(d)
Partial Redemption. In case of any redemption of part of the shares of
Designated Preferred Stock at the time outstanding, the shares to be redeemed shall be selected
either pro rata or in such other manner as the Board of Directors or a duly authorized committee
thereof may determine to be fair and equitable. Subject to the provisions hereof, the Board of
Directors or a duly authorized committee thereof shall have full power and authority to prescribe
the terms and conditions upon which shares of Designated Preferred Stock shall be redeemed
from time to time. If fewer than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without charge to the holder
thereof.
(e)
Effectiveness of Redemption. If notice of redemption has been duly given and if
on or before the redemption date specified in the notice all funds necessary for the redemption
have been deposited by the Issuer, in trust for the pro rata benefit of the holders of the shares
called for redemption, with a bank or trust company doing business in the Borough of
Manhattan, The City of New York, and having a capital and surplus of at least $500 million and
selected by the Board of Directors, so as to be and continue to be available solely therefor, then,
notwithstanding that any certificate for any share so called for redemption has not been
surrendered for cancellation, on and after the redemption date dividends shall cease to accrue on
all shares so called for redemption, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall forthwith on such redemption date
cease and terminate, except only the right of the holders thereof to receive the amount payable on
such redemption from such bank or trust company, without interest. Any funds unclaimed at the
end of three years from the redemption date shall, to the extent permitted by law, be released to
the Issuer, after which time the holders of the shares so called for redemption shall look only to
the Issuer for payment of the redemption price of such shares.
(f)
Status of Redeemed Shares. Shares of Designated Preferred Stock that are
redeemed, repurchased or otherwise acquired by the Issuer shall revert to authorized but unissued
shares of Preferred Stock (provided that any such cancelled shares of Designated Preferred Stock
may be reissued only as shares of any series of Preferred Stock other than Designated Preferred
Stock).
Section 6.
Conversion. Holders of Designated Preferred Stock shares shall have no
right to exchange or convert such shares into any other securities.
Section 7.
Voting Rights.
(a)
General.
The holders of Designated Preferred Stock shall not have any
voting rights except as set forth below or as otherwise from time to time required by law.
Whenever, at any time or times, dividends payable
(b)
Preferred Stock Directors.
on the shares of Designated Preferred Stock have not been paid for an aggregate of eight
quarterly Dividend Periods or more, whether or not consecutive, the authorized number of
directors of the Issuer shall automatically be increased by two and the holders of the Designated
Preferred Stock shall have the right, with holders of shares of any one or more other classes or
series of Voting Parity Stock outstanding at the time, voting together as a class, to elect two
SPA – UST Sequence No. 490
directors (hereinafter the “Preferred Directors” and each a “Preferred Director”) to fill such
newly created directorships at the Issuer’s next annual meeting of stockholders (or at a special
meeting called for that purpose prior to such next annual meeting) and at each subsequent annual
meeting of stockholders until dividends payable on all outstanding shares of Designated
Preferred Stock have been declared and paid in full for four consecutive quarterly Dividend
Period (and which shall include all accrued and unpaid dividends for all past Dividend Periods,
including the latest completed Dividend Period (including, if applicable as provided in Section
3(a) above, dividends on such amount)), at which time such right shall terminate with respect to
the Designated Preferred Stock, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character above mentioned;
provided that it shall be a qualification for election for any Preferred Director that the election of
such Preferred Director shall not cause the Issuer to violate any corporate governance
requirements of any securities exchange or other trading facility on which securities of the Issuer
may then be listed or traded that listed or traded companies must have a majority of independent
directors. Upon any termination of the right of the holders of shares of Designated Preferred
Stock and Voting Parity Stock as a class to vote for directors as provided above, the Preferred
Directors shall cease to be qualified as directors, the term of office of all Preferred Directors then
in office shall terminate immediately and the authorized number of directors shall be reduced by
the number of Preferred Directors elected pursuant hereto. Any Preferred Director may be
removed at any time, with or without cause, and any vacancy created thereby may be filled, only
by the affirmative vote of the holders a majority of the shares of Designated Preferred Stock at
the time outstanding voting separately as a class together with the holders of shares of Voting
Parity Stock, to the extent the voting rights of such holders described above are then exercisable.
If the office of any Preferred Director becomes vacant for any reason other than removal from
office as aforesaid, the remaining Preferred Director may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy occurred.
(c)
Class Voting Rights as to Particular Matters.
So long as any shares of
Designated Preferred Stock are outstanding, in addition to any other vote or consent of
stockholders required by law or by the Charter, the vote or consent of the holders of at least 66
2/3% of the shares of Designated Preferred Stock at the time outstanding, voting as a separate
class, given in person or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i)
Authorization of Senior Stock. Any amendment or alteration of the
Certificate of Designations for the Designated Preferred Stock or the Charter to authorize
or create or increase the authorized amount of, or any issuance of, any shares of, or any
securities convertible into or exchangeable or exercisable for shares of, any class or series
of capital stock of the Issuer ranking senior to Designated Preferred Stock with respect to
either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Issuer;
(ii)
Amendment of Designated Preferred Stock. Any amendment, alteration
or repeal of any provision of the Certificate of Designations for the Designated Preferred
Stock or the Charter (including, unless no vote on such merger or consolidation is
required by Section 7(c)(iii) below, any amendment, alteration or repeal by means of a
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merger, consolidation or otherwise) so as to adversely affect the rights, preferences,
privileges or voting powers of the Designated Preferred Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Designated
Preferred Stock, or of a merger or consolidation of the Issuer with another corporation or
other entity, unless in each case (x) the shares of Designated Preferred Stock remain
outstanding or, in the case of any such merger or consolidation with respect to which the
Issuer is not the surviving or resulting entity, are converted into or exchanged for
preference securities of the surviving or resulting entity or its ultimate parent, and (y)
such shares remaining outstanding or such preference securities, as the case may be, have
such rights, preferences, privileges and voting powers, and limitations and restrictions
thereof, taken as a whole, as are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and limitations and restrictions
thereof, of Designated Preferred Stock immediately prior to such consummation, taken as
a whole; provided, however, that for all purposes of this Section 7(c), any increase in the
amount of the authorized Preferred Stock, including any increase in the authorized
amount of Designated Preferred Stock necessary to satisfy preemptive or similar rights
granted by the Issuer to other persons prior to the Signing Date, or the creation and
issuance, or an increase in the authorized or issued amount, whether pursuant to
preemptive or similar rights or otherwise, of any other series of Preferred Stock, or any
securities convertible into or exchangeable or exercisable for any other series of Preferred
Stock, ranking equally with and/or junior to Designated Preferred Stock with respect to
the payment of dividends (whether such dividends are cumulative or non-cumulative) and
the distribution of assets upon liquidation, dissolution or winding up of the Issuer will not
be deemed to adversely affect the rights, preferences, privileges or voting powers, and
shall not require the affirmative vote or consent of, the holders of outstanding shares of
the Designated Preferred Stock.
(d)
Changes after Provision for Redemption. No vote or consent of the holders of
Designated Preferred Stock shall be required pursuant to Section 7(c) above if, at or prior to the
time when any such vote or consent would otherwise be required pursuant to such Section, all
outstanding shares of the Designated Preferred Stock shall have been redeemed, or shall have
been called for redemption upon proper notice and sufficient funds shall have been deposited in
trust for such redemption, in each case pursuant to Section 5 above.
(e)
Procedures for Voting and Consents. The rules and procedures for calling and
conducting any meeting of the holders of Designated Preferred Stock (including, without
limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies
at such a meeting, the obtaining of written consents and any other aspect or matter with regard to
such a meeting or such consents shall be governed by any rules of the Board of Directors or any
duly authorized committee of the Board of Directors, in its discretion, may adopt from time to
time, which rules and procedures shall conform to the requirements of the Charter, the Bylaws,
and applicable law and the rules of any national securities exchange or other trading facility on
which Designated Preferred Stock is listed or traded at the time.
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Section 8.
Restriction on Repurchases. So long as any share of Designated
Preferred Stock remains outstanding, neither the Issuer nor any Issuer Subsidiary shall, redeem,
purchase or acquire any shares of Common Stock, Junior Stock, Parity Stock or other capital
stock or other equity securities of any kind of the Issuer or any Issuer Subsidiary, or any trust
preferred securities issued by the Issuer or any Affiliate of the Issuer, (other than (i) redemptions,
purchases, repurchases or other acquisitions of the Designated Preferred Stock and (ii)
repurchases of Junior Stock or Common Stock in connection with the administration of any
employee benefit plan in the ordinary course of business (including purchases to offset any Share
Dilution Amount pursuant to a publicly announced repurchase plan) and consistent with past
practice; provided that any purchases to offset the Share Dilution Amount shall in no event
exceed the Share Dilution Amount, (iii) the acquisition by the Issuer or any of the Issuer
Subsidiaries of record ownership in Junior Stock or Parity Stock for the beneficial ownership of
any other persons (other than the Issuer or any other Issuer Subsidiary), including as trustees or
custodians, (iv) the exchange or conversion of Junior Stock for or into other Junior Stock or of
Parity Stock or trust preferred securities for or into other Parity Stock (with the same or lesser
aggregate liquidation amount) or Junior Stock, in each case set forth in this clause (iv), solely to
the extent required pursuant to binding contractual agreements entered into prior to the Signing
Date or any subsequent agreement for the accelerated exercise, settlement or exchange thereof
for Common Stock, (v) redemptions of securities held by the Issuer or any wholly-owned Issuer
Subsidiary or (vi) redemptions, purchases or other acquisitions of capital stock or other equity
securities of any kind of any Issuer Subsidiary required pursuant to binding contractual
agreements entered into prior to January 16, 2009), unless all accrued and unpaid dividends for
all past Dividend Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such amount), on all outstanding
shares of Designated Preferred Stock have been or are contemporaneously declared and paid in
full (or have been declared and a sum sufficient for the payment thereof has been set aside for the
benefit of the holders of shares of Designated Preferred Stock on the applicable record date).
Section 9. Record Holders. To the fullest extent permitted by applicable law, the Issuer and the
transfer agent for Designated Preferred Stock may deem and treat the record holder of any share
of Designated Preferred Stock as the true and lawful owner thereof for all purposes, and neither
the Issuer nor such transfer agent shall be affected by any notice to the contrary.
Section 10. Notices.
All notices or communications in respect of Designated
Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first
class mail, postage prepaid, or if given in such other manner as may be permitted in this
Certificate of Designations, in the Charter or Bylaws or by applicable law. Notwithstanding the
foregoing, if shares of Designated Preferred Stock are issued in book-entry form through The
Depository Trust Company or any similar facility, such notices may be given to the holders of
Designated Preferred Stock in any manner permitted by such facility.
No share of Designated Preferred Stock
Section 11. No Preemptive Rights.
shall have any rights of preemption whatsoever as to any securities of the Issuer, or any warrants,
rights or options issued or granted with respect thereto, regardless of how such securities, or such
warrants, rights or options, may be designated, issued or granted.
Section 12.
Replacement Certificates. The Issuer shall replace any mutilated
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certificate at the holder’s expense upon surrender of that certificate to the Issuer. The Issuer shall
replace certificates that become destroyed, stolen or lost at the holder’s expense upon delivery to
the Issuer of reasonably satisfactory evidence that the certificate has been destroyed, stolen or
lost, together with any indemnity that may be reasonably required by the Issuer.
Section 13. Other Rights. The shares of Designated Preferred Stock shall not have
any rights, preferences, privileges or voting powers or relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or
in the Charter or as provided by applicable law.
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@FedFRASER