EXHIBIT 4.2
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF SERIES B CONVERTIBLE PREFERRED STOCK
of
CARVER BANCORP, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, the undersigned, Deborah C. Wright, President and Chief Executive
Officer, and Walter Bond, Vice President, of Carver Bancorp, Inc., a Delaware
corporation (hereinafter called the "CORPORATION"), pursuant to the provisions
of Sections 103 and 151 of the General Corporation Law of the State of Delaware,
do hereby make this Certificate of Designations and do hereby state and certify
that pursuant to the authority expressly vested in the Board of Directors of the
Corporation by the Certificate of Incorporation, the Board of Directors duly
adopted the following resolutions:
RESOLVED, that, pursuant to Article IV of the Certificate of
Incorporation (which authorizes 2,000,000 shares of preferred stock, $.01 par
value ("PREFERRED STOCK"), of which no shares of a series of Preferred Stock are
currently issued and outstanding), the Board of Directors hereby fixes the
powers, designations, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions, of a
series of Preferred Stock.
RESOLVED, that each share of such series of Series B Convertible
Preferred Stock shall rank equally in all respects and shall be subject to the
following provisions:
1. NUMBER AND DESIGNATION. 60,000 shares of the Preferred Stock of
the Corporation shall be designated as Series B Convertible Preferred Stock (the
"SERIES B PREFERRED STOCK").
2. RANK. Other than with respect to Parity Securities (as defined
below), the Series B Preferred Stock shall, with respect to dividend rights and
rights on liquidation, dissolution and winding up, rank prior to all classes or
series of equity securities of the Corporation, including the Corporation's
common stock, $.01 par value ("COMMON STOCK"). All equity securities of the
Corporation to which the Series B Preferred Stock ranks prior (whether with
respect to dividends or upon liquidation, dissolution, winding up or otherwise),
including
the Common Stock, are collectively referred to herein as the "JUNIOR
SECURITIES." The Series A Convertible Preferred Stock, $.01 par value (the
"SERIES A PREFERRED STOCK"), and all other equity securities of the Corporation
with which the Series B Preferred Stock ranks on a parity (whether with respect
to dividends or upon liquidation, dissolution or winding up) are collectively
referred to herein as the "PARITY SECURITIES." The respective definitions of
Junior Securities and Parity Securities shall also include any rights or options
exercisable for or convertible into any of the Junior Securities and Parity
Securities, as the case may be. The Series B Preferred Stock shall be subject to
the creation of Junior Securities and Parity Securities.
3. DIVIDENDS. (a) The holders of shares of Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends, cash
dividends at the annual rate of $1.96875 per share. Such dividends shall be
payable in arrears in equal amounts semi-annually on June 15 and December 15 of
each year, beginning on June 15, 2000, unless such day is not a business day, in
which event on the next succeeding business day) (each of such dates being a
"DIVIDEND PAYMENT DATE" and each such semi-annual period being a "DIVIDEND
PERIOD"). Such dividends shall be cumulative from the date of issue, whether or
not in any Dividend Period or Periods there shall be funds of the Corporation
legally available for the payment of such dividends. Each such dividend shall be
payable to the holders of record of shares of the Series B Preferred Stock, as
they appear on the stock records of the Corporation at the close of business on
such record dates, not more than 60 days or less than 10 days preceding the
payment dates thereof, as shall be fixed by the Board of Directors. Accrued and
unpaid dividends for any past Dividend Periods may be declared and paid at any
time, without reference to any Dividend Payment Date, to holders of record on
such date, not more than 45 days preceding the payment date thereof, as may be
fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for
the Series B Preferred Stock shall be computed by dividing the annual dividend
rate by two. The amount of dividends payable for the initial Dividend Period, or
any other period shorter or longer than a full Dividend Period, on the Series B
Preferred Stock shall be computed on the basis of twelve 30-day months and a
360-day year. Holders of shares of Series B Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in excess
of cumulative dividends, as herein provided, on the Series B Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series B Preferred Stock that may be in
arrears.
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(c) So long as any shares of the Series B Preferred Stock are
outstanding, no dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on Parity Securities 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 the Series B Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of the dividend on such class or
series of parity stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends declared upon
shares of the Series B Preferred Stock and all dividends declared upon any
Parity Securities shall be declared ratably in proportion to the respective
amounts of dividends accrued and unpaid on the Series B Preferred Stock and
accrued and unpaid on such Parity Securities.
(d) So long as any shares of the Series B Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Junior Securities) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary approved by the Board of Directors) 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, directly or indirectly (except by
conversion into or exchange for Junior Securities) (all such dividends,
distributions, redemptions or purchases being hereinafter referred to as a
"JUNIOR SECURITIES DISTRIBUTION"), unless in each case (i) the full cumulative
dividends on all outstanding shares of the Series B Preferred Stock and any
other Parity Securities shall have been paid or set apart for payment for all
past Dividend Periods with respect to the Series B Preferred Stock and all past
dividend periods with respect to such Parity Securities and (ii) sufficient
funds shall have been paid or set apart for the payment of the dividend for the
current Dividend Period with respect to the Series B Preferred Stock and the
current dividend period with respect to such Parity Securities.
4. LIQUIDATION PREFERENCE. (a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the Corporation (whether
capital or surplus) shall be made to or set apart for the holders of Junior
Securities, the holders of the shares of Series B Preferred Stock shall be
entitled to receive $25.00 per share of Series B Preferred Stock plus an amount
equal to all dividends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the Corporation,
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the assets of the Corporation, or proceeds thereof, distributable among the
holders of the shares of Series B Preferred Stock shall be insufficient to pay
in full the preferential amount aforesaid and liquidating payments on any Parity
Securities, then such assets, or the proceeds thereof, shall be distributed
among the holders of shares of Series B Preferred Stock and any such other
Parity Securities ratably in accordance with the respective amounts that would
be payable on such shares of Series B Preferred Stock and any such other Parity
Securities if all amounts payable thereon were paid in full. Prior to the
liquidation, dissolution or winding up of the Corporation, to the extent funds
of the Corporation are legally available for the payment of dividends, the
Corporation shall declare for payment all accrued and unpaid dividends with
respect to the Series B Preferred Stock and any Parity Securities ratably in
accordance with the respective amounts that would be payable on such shares of
Series B Preferred Stock and any such other Parity Securities if all amounts
payable thereon were paid in full. Notwithstanding anything else in this
Certificate of Incorporation, a liquidation, dissolution or winding up,
voluntary or involuntary, of the Corporation shall be deemed to have occurred
upon (i) the acquisition of the Corporation by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation, whether of the Corporation with or
into any other corporation or corporations or of any other corporation or
corporations with or into the Corporation, but excluding any merger effected
exclusively for the purpose of changing the domicile of the Corporation); or
(ii) a sale of all or substantially all of the assets of the Corporation;
PROVIDED that a consolidation or merger as a result of which the holders of
capital stock of the Corporation immediately prior to such merger or
consolidation possess (by reason of such holdings) more than 50% of the voting
power of the corporation surviving such merger or consolidation (or other
corporation which is the issuer of the capital stock into which the capital
stock of the Corporation is converted or exchanged in such merger or
consolidation) shall not be treated as a liquidation, dissolution or winding up,
voluntary or involuntary, of the Corporation within the meaning of this
paragraph 4.
(b) Subject to the rights of the holders of any Parity Securities,
after payment shall have been made in full to the holders of the Series B
Preferred Stock, as provided in this paragraph 4, any other series or class or
classes of Junior Securities shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Series B Preferred
Stock shall not be entitled to share therein.
5. REDEMPTION. Shares of Series B Preferred Stock shall be redeemable
by the Corporation as provided below (with all references in this paragraph 5 to
a redemption price per share to be adjusted proportionally in respect of
fractional shares).
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(a) The shares of Series B Preferred Stock shall not be redeemable
prior to the Initial Redemption Date. The "INITIAL REDEMPTION DATE" shall be
January 15, 2004.
(b) At the option of the Corporation, shares of Series B Preferred
Stock may be redeemed at any time or from time to time (subject to the
provisions set forth below and paragraph 7) on or after the Initial Redemption
Date, in whole or in part, at the price (the "REDEMPTION PRICE"), payable in
cash, equal to the percentage set forth below of the liquidation preference per
share for redemptions during the 12-month periods beginning on the Initial
Redemption Date or the annual anniversaries thereof indicated below, plus, in
each case, an amount equal to accrued and unpaid dividends thereon (whether or
not declared and whether or not there are funds of the Corporation legally
available for the payment of dividends), to the date fixed for redemption:
12-MONTH PERIOD BEGINNING ON PERCENTAGE
Initial Redemption Date 107.8750%
First Anniversary thereof 106.5625%
Second Anniversary thereof 105.2500%
Third Anniversary thereof 103.9375%
Fourth Anniversary thereof 102.6250%
Fifth Anniversary thereof 101.3125%
Sixth Anniversary thereof
and thereafter 100.00%
(c) From and after January 15, 2005, holders of a majority of the
shares of Series B Preferred Stock may require the Corporation to redeem all
(but not less than all) outstanding shares of Series B Preferred Stock at a
redemption price per share, payable in cash, equal to the liquidation preference
per share plus an amount equal to accrued and unpaid dividends thereon (whether
or not declared and whether or not there are funds of the Corporation legally
available for the payment of dividends), to the date fixed for redemption.
(d) Shares of Series B Preferred Stock which have been issued and
reacquired in any manner, including shares purchased or redeemed, shall (upon
compliance with any applicable provisions of the laws of the State of Delaware)
have the status of authorized and unissued shares of the class of Preferred
Stock undesignated as to series and may be redesignated and reissued as part of
any series of the Preferred Stock; PROVIDED that no such issued and reacquired
shares of Series B Preferred Stock shall be reissued or sold as Series B
Preferred Stock
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(e) Notwithstanding the foregoing provisions of this paragraph 5,
unless full cumulative cash dividends (whether or not declared) on all
outstanding shares of Series B Preferred Stock shall have been paid or
contemporaneously are declared and paid or set apart for payment for all
dividend periods terminating on or prior to the applicable redemption date, none
of the shares of Series B Preferred Stock shall be redeemed, and no sum shall be
set aside for such redemption, unless shares of Series B Preferred Stock are
redeemed pro rata.
6. PROCEDURE FOR REDEMPTION. (a) In the event that, pursuant to
paragraph 5(b), fewer than all the outstanding shares of Series B Preferred
Stock 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
selected by lot or pro rata (with any fractional shares being rounded to the
nearest whole share) as may be determined by the Board of Directors (subject to
paragraph 5(E)).
(b) In the event the Corporation shall redeem shares of Series B
Preferred Stock, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 days 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;
PROVIDED that neither the failure to give such notice nor any defect therein
shall affect the validity of the giving of notice for the redemption of any
share of Series B Preferred Stock to be redeemed except as to the holder to whom
the Corporation has failed to give said notice or except as to the holder whose
notice was defective. Each such notice shall state: (i) the redemption date;
(ii) the number of shares of Series B Preferred Stock to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the number of
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 such redemption date.
(c) 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 of the shares called for
redemption), dividends on the shares of Series B Preferred Stock so called for
redemption shall cease to accrue, 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 within five
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business days after the later of the redemption date or the surrender of the
certificate representing such shares representing the unredeemed shares without
cost to the holder thereof.
(d) If, in connection with a redemption of shares of Series B
Preferred Stock pursuant to paragraph 5(C), the funds of the Corporation legally
available for such redemption on the redemption date are insufficient to redeem
the total number of such shares to be redeemed on such date, those funds which
are legally available shall be used to redeem the maximum possible number of
shares pro rata among the holders of the shares of Series B Preferred Stock to
be redeemed based upon the aggregate number of such shares held by each such
holder. At any time thereafter when additional funds of the Corporation are
legally available for the redemption of shares of Series B Preferred Stock, such
funds shall immediately be used to redeem the balance of such shares of which
the Corporation has become obligated to redeem on such redemption date but which
it has not redeemed.
7. CONVERSION. (a) Subject to the provisions of this paragraph 7, the
holders of the shares of Series B Preferred Stock shall have the right, at any
time and from time to time, at such holder's option, to convert any or all
outstanding shares (and fractional shares) of Series B Preferred Stock, in whole
or in part, into fully paid and non-assessable shares of Common Stock. The
number of shares of Common Stock deliverable upon conversion of a share of
Series B Preferred Stock (expressed as a ratio), adjusted as hereinafter
provided, is equal to the "CONVERSION RATIO." The Conversion Ratio as of the
date of issue of the Series B Preferred Stock is 2.083333 subject to adjustment
from time to time pursuant to paragraph 7(G) hereof. Notwithstanding any call
for redemption pursuant to paragraph 5, the right to convert shares so called
for redemption shall terminate at the close of business on the date immediately
preceding the date fixed for such redemption unless the Corporation shall
default in making payment of the amount payable upon such redemption.
(b) (i) In order to exercise the conversion privilege, the holder of
the shares of Series B Preferred Stock to be converted shall surrender the
certificate representing such shares at the office of the Corporation, with a
written notice of election to convert completed and signed, specifying the
number of shares to be converted. Unless the shares issuable on conversion are
to be issued in the same name as the name in which such shares of Series B
Preferred Stock are registered, each share surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder or the holder's duly authorized attorney and an
amount sufficient to pay any transfer or similar tax.
(ii) As promptly as practicable after the surrender by the holder
of the certificates for shares of Series B Preferred Stock as
aforesaid, but
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in any event within five business days after notice of such conversion
has been delivered to the Corporation, the Corporation shall issue and
shall deliver to such holder, or on the holder's written order to the
holder's transferee, (A) a certificate or certificates for the whole
number of shares of Common Stock issuable upon the conversion of such
shares in accordance with the provisions of this paragraph 7 and (B) a
certificate representing any shares of Series B Preferred Stock which
were represented by the certificate delivered to the Corporation in
connection with such conversion but which were not converted.
(iii) Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for shares of Series B Preferred Stock shall have been
surrendered and such notice received by the Corporation as aforesaid,
and the person in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall
be deemed to have become the holder of record of the shares of Common
Stock represented thereby at such time on such date and such conversion
shall be into a number of shares of Common Stock equal to the product
of the number of shares of Series B Preferred Stock surrendered times
the Conversion Ratio in effect at such time on such date. All shares of
Common Stock delivered upon conversion of the Series B Preferred Stock
will upon delivery be duly and validly issued and fully paid and
non-assessable, free of all liens and charges and not subject to any
preemptive rights. Upon the surrender of certificates representing
shares of Series B Preferred Stock, such shares shall no longer be
deemed to be outstanding and all rights of a holder with respect to
such shares surrendered for conversion shall immediately terminate
except the right to receive the Common Stock and other amounts payable
pursuant to this paragraph 7.
(c) (i) Upon delivery to the Corporation by a holder of shares of
Series B Preferred Stock of a notice of election to convert, the right of the
Corporation to redeem such shares of Series B Preferred Stock shall terminate,
regardless of whether a notice of redemption has been mailed as aforesaid.
(ii) From the date of delivery by a holder of shares of Series B
Preferred Stock of such notice of election to convert, in lieu of
dividends on such Series B Preferred Stock pursuant to paragraph 3,
such Series B Preferred Stock shall participate equally and ratably
with the holders of shares of Common Stock in all dividends paid on the
Common Stock as if such shares of Series B Preferred Stock had been
converted to shares of Common Stock at the time of such delivery.
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(iii) If a notice of election to convert is delivered by a holder
of shares of Series B Preferred Stock to the Corporation before the
delivery by the Corporation to such holder of a notice of redemption,
such holder shall be entitled to receive all accrued but unpaid
dividends which such holder is entitled to receive pursuant to
paragraph 3. In addition, such holder at the opening of business on a
Dividend Payment Date shall be entitled to receive the dividend
payable on such shares on such Dividend Payment Date notwithstanding
the Corporation's default in payment of the dividend due on such
Dividend Payment Date. Such dividends shall be in preference to and in
priority over any dividends on the Common Stock.
(iv) If, after receipt by a holder of shares of Series B Preferred
Stock of a notice of redemption pursuant to paragraph 5, such holder
delivers to the Corporation a notice of election to convert, such
Series B Preferred Stock shall cease to accrue dividends pursuant to
paragraph 3 but such shares shall continue to be entitled to receive
all accrued but unpaid dividends which such holder is entitled to
receive pursuant to paragraph 3 through the date of delivery of such
notice of election to convert (including pro rata dividends for the
period from the last Dividend Payment Date to the date of delivery of
the notice of election to convert) in preference to and in priority
over any dividends on the Common Stock. Except as provided in
paragraph 7(c)(v), such accrued dividends shall be payable to such
holder when, as and if declared by the Board of Directors, out of
funds legally available for the payment of dividends, as provided in
paragraph 3 above.
(v) At the option of a holder who has delivered a notice of
election to convert, such holder may receive as payment of all accrued
and unpaid dividends which such holder is entitled to receive pursuant
to paragraph 7(c)(iii) or (iv) on the shares of Series B Preferred
Stock that are the subject of such notice of election to convert such
additional number of shares of Common Stock determined by dividing the
amount of accrued but unpaid dividends by the Daily Price (as defined
below) per share of Common Stock on the business day on which such
shares of Series B Preferred Stock are deemed to have been converted.
(vi) Except as provided above and in paragraph 7(G), the
Corporation shall make no payment or adjustment for accrued and unpaid
dividends on shares of Series B Preferred Stock, whether or not in
arrears, on conversion of such shares or for dividends in cash on the
shares of Common Stock issued upon such conversion.
(d) (i) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, such number of its authorized
but
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unissued shares of Common Stock as shall be required for the purpose of
effecting conversion of the Series B Preferred Stock.
(ii) Prior to the delivery of any securities which the Corporation
shall be obligated to deliver upon conversion of the Series B
Preferred Stock, the Corporation shall comply with all applicable
federal and state laws and regulations, and any applicable
requirements of the principal domestic securities exchange upon which
the shares of Common Stock are listed and traded, which require action
to be taken by the Corporation.
(e) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares of
Common Stock on conversion of the Series B Preferred Stock pursuant hereto;
PROVIDED that the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the holder of the Series B
Preferred Stock to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid to the
Corporation the amount of any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
(f) In connection with the conversion of any shares of Series B
Preferred Stock, no fractions of shares of Common Stock shall be issued, but in
lieu thereof the Corporation shall pay, within five business days after notice
of election to convert has been delivered to the Corporation, a cash adjustment
in respect of such fractional interest in an amount equal to such fractional
interest multiplied by the Daily Price (as defined below) per share of Common
Stock on the business day on which such shares of Series B Preferred Stock are
deemed to have been converted.
(g) (i) In case the Corporation shall at any time after the date of
issue of the Series B Preferred Stock (A) declare a dividend or make a
distribution on Common Stock payable in Common Stock, (B) subdivide or split the
outstanding Common Stock, (C) combine or reclassify the outstanding Common Stock
into a smaller number of shares, (D) issue any shares of its capital stock in a
reclassification of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Corporation is the
continuing corporation), or (E) consolidate with, or merge with or into, any
other Person, the Conversion Ratio in effect at the time of the record date for
such dividend or distribution or of the effective date of such subdivision,
split, combination, consolidation, merger or reclassification shall be
proportionately adjusted so that the conversion of the Series B Preferred Stock
after such time shall entitle the holder to receive the aggregate number of
shares of Common Stock or other securities of the Corporation (or shares of any
security into which
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such shares of Common Stock have been combined, consolidated, merged or
reclassified pursuant to clause 7(g)(i)(C), 7(g)(i)(D) or 7(g)(i)(E) above)
which, if this Series B Preferred Stock had been converted immediately prior to
such time, such holder would have owned upon such conversion and been entitled
to receive by virtue of such dividend, distribution, subdivision, split,
combination, consolidation, merger or reclassification, assuming such holder of
Common Stock of the Corporation (x) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such recapitalization, sale or transfer was made, as the
case may be ("CONSTITUENT PERSON"), or an affiliate of a constituent person and
(y) failed to exercise any rights of election as to the kind or amount of
securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, recapitalization, sale or transfer (PROVIDED,
that if the kind or amount of securities, cash and other property receivable
upon such reclassification, change, consolidation, merger, recapitalization,
sale or transfer is not the same for each share of Common Stock of the
Corporation held immediately prior to such reclassification, change,
consolidation, merger, recapitalization, sale or transfer by other than a
constituent person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised ("NON-ELECTING SHARE"), then for the
purpose of this subparagraph 7(G) the kind and amount of securities, cash and
other property receivable upon such reclassification, change, consolidation,
merger, recapitalization, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such adjustment shall be made successively whenever any
event listed above shall occur.
(ii) In case the Corporation shall issue or sell any Common Stock
(other than Common Stock issued (A) pursuant to the Corporation's
stock option plans or pursuant to any other Common Stock related
employee compensation plan of the Corporation approved by the
Corporation's Board of Directors or (B) upon exercise or conversion of
any security the issuance of which caused an adjustment under
paragraphs 7(G)(III) or 7(G)(IV) hereof) without consideration or for
a consideration per share less than the then Current Market Price Per
Common Share (as defined in paragraph 7(G)(VI)), the Conversion Ratio
to be in effect after such issuance or sale shall be determined by
multiplying the Conversion Ratio in effect immediately prior to such
issuance or sale by a fraction, (1) the numerator of which shall be
the product of the aggregate number of shares of Common Stock
outstanding immediately after such issuance or sale and the Current
Market Price Per Common Share (as defined in paragraph 7(G)(VI))
immediately prior to such issuance or sale and (2) the denominator of
which shall be the sum of (x) the number of shares of Common Stock
outstanding immediately prior to the time of such issuance or sale
multiplied by the Current Market Price Per Common Share
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immediately prior to such issuance or sale and (y) the aggregate
consideration, if any, to be received by the Corporation upon such
issuance or sale. In case any portion of the consideration to be
received by the Corporation shall be in a form other than cash, the
fair market value of such noncash consideration shall be utilized in
the foregoing computation. Such fair market value shall be determined
by the Board of Directors of the Corporation; PROVIDED that if the
holders of 25% of the Series B Preferred Stock shall object to any such
determination, the Board of Directors shall retain an independent
appraiser reasonably satisfactory to such holders to determine such
fair market value. The holders shall be notified promptly of any
consideration other than cash to be received by the Corporation and
furnished with a description of the consideration and the fair market
value thereof, as determined by the Board of Directors.
(iii) In case the Corporation shall fix a record date for the
issuance of rights, options or warrants to the holders of its Common
Stock or other securities entitling such holders to subscribe for or
purchase shares of Common Stock (or securities convertible into shares
of Common Stock) at a price per share of Common Stock (or having a
conversion price per share of Common Stock, if a security convertible
into shares of Common Stock) less than the then Conversion Price Per
Common Share on such record date, the maximum number of shares of
Common Stock issuable upon exercise of such rights, options or
warrants (or conversion of such convertible securities) shall be
deemed to have been issued and outstanding as of such record date and
the Conversion Ratio shall be adjusted pursuant to paragraph 7(G)(II)
hereof, as though such maximum number of shares of Common Stock had
been so issued for an aggregate consideration payable by the holders
of such rights, options, warrants or convertible securities prior to
their receipt of such shares of Common Stock. In case any portion of
such consideration shall be in a form other than cash, the fair market
value of such noncash consideration shall be determined as set forth
in paragraph 7(G)(II) hereof. Such adjustment shall be made
successively whenever such record date is fixed; and in the event that
such rights, options or warrants are not so issued or expire
unexercised, or in the event of a change in the number of shares of
Common Stock to which the holders of such rights, options or warrants
are entitled (other than pursuant to adjustment provisions therein
comparable to those contained in this paragraph 7(G)), the Conversion
Ratio shall again be adjusted to be the Conversion Ratio which would
then be in effect if such record date had not been fixed, in the
former event, or the Conversion Ratio which would then be in effect if
such holder had initially been entitled to such changed number of
shares of Common Stock, in the latter event.
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(iv) In case the Corporation shall issue rights, options (other
than options issued pursuant to a plan described in clause
7(g)(ii)(A)) or warrants entitling the holders thereof to subscribe
for or purchase Common Stock (or securities convertible into shares of
Common Stock) or shall issue convertible securities, and the price per
share of Common Stock of such rights, options, warrants or convertible
securities (including, in the case of rights, options or warrants, the
price at which they may be exercised) is less than the then Conversion
Price Per Common Share, the maximum number of shares of Common Stock
issuable upon exercise of such rights, options or warrants or upon
conversion of such convertible securities shall be deemed to have been
issued and outstanding as of the date of such sale or issuance, and
the Conversion Ratio shall be adjusted pursuant to paragraph 7(G)(II)
hereof as though such maximum number of shares of Common Stock had
been so issued for an aggregate consideration equal to the aggregate
consideration paid for such rights, options, warrants or convertible
securities and the aggregate consideration payable by the holders of
such rights, options, warrants or convertible securities prior to
their receipt of such shares of Common Stock. In case any portion of
such consideration shall be in a form other than cash, the fair market
value of such noncash consideration shall be determined as set forth
in paragraph 7(G)(II) hereof. Such adjustment shall be made
successively whenever such rights, options, warrants or convertible
securities are issued; and in the event that such rights, options or
warrants expire unexercised, or in the event of a change in the number
of shares of Common Stock to which the holders of such rights,
options, warrants or convertible securities are entitled (other than
pursuant to adjustment provisions therein comparable to those
contained in this paragraph 7(G)), the Conversion Ratio shall again be
adjusted to be the Conversion Ratio which would then be in effect if
such rights, options, warrants or convertible securities had not been
issued, in the former event, or the Conversion Ratio which would then
be in effect if such holders had initially been entitled to such
changed number of shares of Common Stock, in the latter event. No
adjustment of the Conversion Ratio shall be made pursuant to this
paragraph 7(G)(IV) to the extent that the Conversion Ratio shall have
been adjusted pursuant to paragraph 7(G)(III) upon the setting of any
record date relating to such rights, options, warrants or convertible
securities and such adjustment fully reflects the number of shares of
Common Stock to which the holders of such rights, options, warrants or
convertible securities are entitled and the price payable therefor.
(v) In case the Corporation shall fix a record date for the making
of a distribution to holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in
which
13
the Corporation is the continuing corporation) of evidences of
indebtedness, assets or other property (other than dividends payable in
Common Stock or rights, options or warrants referred to in, and for
which an adjustment is made pursuant to, paragraph 7(G)(III) hereof),
the Conversion Ratio to be in effect after such record date shall be
determined by multiplying the Conversion Ratio in effect immediately
prior to such record date by a fraction, (A) the numerator of which
shall be the Current Market Price Per Common Share on such record date,
and (B) the denominator of which shall be the Current Market Price Per
Common Share on such record date, less the fair market value
(determined as set forth in paragraph 7(G)(II) hereof) of the portion
of the assets, other property or evidence of indebtedness so to be
distributed which is applicable to one share of Common Stock. Such
adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the
Conversion Ratio shall again be adjusted to be the Conversion Ratio
which would then be in effect if such record date had not been fixed.
(vi) For the purpose of any computation under paragraph 7(F) or
paragraphs 7(G)(II), 7(G)(III), 7(G)(IV) or 7(G)(V) hereof, on any
determination date, (A) the "CURRENT MARKET PRICE PER COMMON Share"
shall be deemed to be the average (weighted by daily trading volume)
of the Daily Prices (as defined below) per share of the applicable
class of Common Stock for the 20 consecutive trading days immediately
prior to such date, (B) the "CONVERSION PRICE PER COMMON SHARE" shall
be deemed to be the amount in dollars which is equal to $25.00 divided
by the Conversion Ratio immediately prior to such adjustment, and (C)
"DAILY PRICE" means (1) if the shares of such class of Common Stock
then are listed and traded on the American Stock Exchange, Inc.
("AMEX"), the closing price on such day as reported on the AMEX
Composite Transactions Tape; (2) if the shares of such class of Common
Stock then are not listed and traded on the AMEX, the closing price on
such day as reported by the principal national securities exchange on
which the shares are listed and traded; (3) if the shares of such
class of Common Stock then are not listed and traded on any such
securities exchange, the last reported sale price on such day on the
National Market of the NASDAQ Stock Market; or (4) if the shares of
such class of Common Stock then are not traded on the NASDAQ National
Market, the average of the highest reported bid and lowest reported
asked price on such day as reported by NASDAQ. For purposes of any
computation under this paragraph 7(G), the number of shares of Common
Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Corporation.
14
(vii) No adjustment to the Conversion Ratio pursuant to paragraphs
7(G)(II), 7(G)(III), 7(G)(IV) and 7(G)(V) above shall be required
unless such adjustment would require an increase or decrease of at
least 1% in the Conversion Ratio; PROVIDED that any adjustments which
by reason of this paragraph 7(G)(VII) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this paragraph 7(G) shall be made
to the nearest four decimal points.
(viii) In the event that, at any time as a result of the
provisions of this paragraph 7(G), the holder of this Series B
Preferred Stock upon subsequent conversion shall become entitled to
receive any shares of capital stock of the Corporation other than
Common Stock, the number of such other shares so receivable upon
conversion of this Series B Preferred Stock shall thereafter be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions contained herein.
(h) All adjustments pursuant to this paragraph 7 shall be notified to
the holders of this Series B Preferred Stock and such notice shall be
accompanied by a Schedule of Computations of the adjustments
8. VOTING RIGHTS. (a) Except as otherwise provided by applicable law,
and subject to the limitations set forth in this paragraph 8, the holders of the
shares of Series B Preferred Stock (i) shall be entitled to vote with the
holders of the Common Stock on all matters submitted for a vote of holders of
Common Stock, (ii) shall be entitled to a number of votes equal to the number of
votes to which the shares of Common Stock issuable upon conversion of such
shares of Series B Preferred Stock would have been entitled if such shares of
Common Stock had been outstanding at the time of the applicable vote and related
record date and (iii) shall be entitled to notice of any stockholders' meeting
in accordance with the certificate of incorporation and bylaws of the
Corporation.
(b) So long as any shares of Series B Preferred Stock are outstanding,
the Corporation shall not, without the written consent or affirmative vote at a
meeting called for that purpose of the holders of a majority of the shares of
Series B Preferred Stock then outstanding, (i) amend, alter or repeal, whether
by merger, consolidation, combination, reclassification or otherwise, the
Certificate of Incorporation or By-laws of the Corporation or of any provision
thereof (including the adoption of a new provision thereof) which would result
in an alteration or circumvention of the voting powers, designation and
preferences and relative participating, optional and other special rights, and
qualifications, limitations and restrictions of the Series B Preferred Stock;
PROVIDED that any such amendment or alteration that changes the dividend payable
on, or the liquidation
15
preference or the par value of, the Series B Preferred Stock shall require the
affirmative vote at a meeting of holders of Series B Preferred Stock duly called
for such purpose, or the written consent, of the holder of each share of Series
B Preferred Stock; (ii) issue any additional Series B Preferred Stock or (iii)
(A) create, authorize or issue any Parity Securities which would result in more
than $5 million aggregate liquidation preference of Parity Securities being
authorized or issued, (B) create, authorize or issue any preferred stock ranking
senior in right of payment to the Series B Preferred Stock or (C) increase the
authorized amount of any such other class or series referred to in clause (A) or
(B); PROVIDED that clause 8(b)(iii) shall not limit the right of the Corporation
to issue preferred stock ranking PARI PASSU with the Series B Preferred Stock in
connection with any merger or consolidation in which the Corporation is the
surviving entity.
(c) The consent or votes required in paragraph (b) above shall be in
addition to any approval of stockholders of the Corporation which may be
required by law or pursuant to any provision of the Corporation's certificate of
incorporation or bylaws, which approval shall be obtained by vote of the
stockholders of the Corporation in the manner provided in paragraph (a) above.
(d) If and whenever three semi-annual dividends (whether or not
consecutive) payable on the Series B Preferred Stock have not been paid in full,
the number of directors then constituting the Board of Directors shall be
increased by two and the holders of shares of Series B Preferred Stock, together
with the holders of shares of every other series of preferred stock upon which
like rights to vote for the election of two additional directors have been
conferred and are exercisable (resulting from the failure to pay dividends) (any
such other series is referred to as the "PREFERRED SHARES"), voting as a single
class regardless of series, shall be entitled to elect the two additional
directors to serve on the Board of Directors at any annual meeting of
stockholders or special meeting held in place thereof, or at a special meeting
of the holders of the Series B Preferred Stock and the Preferred Shares called
as hereinafter provided. Whenever all arrears in dividends on the Series B
Preferred Stock and the Preferred Shares then outstanding shall have been paid
and dividends thereon for the current semi-annual Dividend Period shall have
been paid or declared and set apart for payment, then the right of the holders
of the Series B Preferred Stock and the Preferred Shares to elect such
additional two directors shall cease (but subject always to the same provisions
for the vesting of such voting rights in the case of any similar future
arrearages in three semi-annual dividends), and the terms of office of all
persons elected as directors by the holders of the Series B Preferred Stock and
the Preferred Shares shall forthwith terminate and the number of the Board of
Directors shall be reduced accordingly. At any time after such voting power
shall have been so vested in the holders of shares of Series B Preferred Stock
and the Preferred Shares, the secretary of the Corporation may, and upon the
written request of any holder of Series B Preferred Stock (addressed to the
16
secretary at the principal office of the Corporation) shall, call a special
meeting of the holders of the Series B Preferred Stock and of the Preferred
Shares for the election of the two directors to be elected by them as herein
provided, such call to be made by notice similar to that provided in the Bylaws
of the Corporation for a special meeting of the stockholders or as required by
law. If any such special meeting required to be called as above provided shall
not be called by the secretary within 20 days after receipt of any such request,
then any holder of shares of Series B Preferred Stock may call such meeting,
upon the notice above provided, and for that purpose shall have access to the
stock books of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the stockholders or
special meeting held in lieu thereof if such office shall not have previously
terminated as above provided. If any vacancy shall occur among the directors
elected by the holders of the Series B Preferred Stock and the Preferred Shares,
a successor shall be elected by the Board of Directors, upon the nomination of
the then-remaining director elected by the holders of the Series B Preferred
Stock and the Preferred Shares or the successor of such remaining director, to
serve until the next annual meeting of the stockholders or special meeting held
in place thereof if such office shall not have previously terminated as provided
above. In exercising the voting rights set forth in this paragraph 8(g), each
share of Series B Preferred Stock shall have one vote per share, except that
when any other series of preferred stock shall have the right to vote with the
Series B Preferred Stock as a single class on any matter, then the Series B
Preferred Stock and such other series shall have with respect to such matters
one vote per $25.00 of stated liquidation preference.
(e) If the Consolidated Capital Ratio shall at any time be less than
7%, the number of directors then constituting the Board of Directors shall be
increased by one and the holders of shares of Series B Preferred Stock, together
with the holders of shares of Series A Preferred Stock, voting as a single
class, shall be entitled to elect the additional director to serve on the Board
of Directors at any annual meeting of stockholders or special meeting held in
place thereof, or at a special meeting of the holders of the Series B Preferred
Stock and the Series A Preferred Stock called as hereinafter provided.
"CONSOLIDATED CAPITAL RATIO" means the ratio (expressed as a percentage) of the
Corporation's "consolidated capital" to its "total assets", as derived from the
Corporation's quarterly and annual reports filed with the Securities and
Exchange Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934. Whenever the Consolidated Capital Ratio shall thereafter
be equal to or greater than 7%, then the right of the holders of the Series B
Preferred Stock and the Series A Preferred Stock to elect such additional
director shall cease (but subject always to the same provisions for the vesting
of such voting rights in the case of any similar future failures of the
Consolidated Capital Ratio to be at least equal to such percentage), and the
term of office of the person elected as a director by the holders of the Series
B Preferred Stock and the Series A Preferred Stock shall forthwith
17
terminate and the number of the Board of Directors shall be reduced accordingly.
At any time after such voting power shall have been so vested in the holders of
shares of Series B Preferred Stock and the Series A Preferred Stock, the
secretary of the Corporation may, and upon the written request of any holder of
Series B Preferred Stock (addressed to the secretary at the principal office of
the Corporation) shall, call a special meeting of the holders of the Series B
Preferred Stock and of the Series A Preferred Stock for the election of the
director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the stockholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 20 days after receipt of any such request, then any holder of shares of
Series B Preferred Stock may call such meeting, upon the notice above provided,
and for that purpose shall have access to the stock books of the Corporation.
The director elected at any such special meeting shall hold office until the
next annual meeting of the stockholders or special meeting held in lieu thereof
if such office shall not have previously terminated as above provided. In
exercising the voting rights set forth in this paragraph 8(h), each share of
Series B Preferred Stock shall have one vote per share, except that when the
Series A Preferred Stock shall have the right to vote with the Series B
Preferred Stock as a single class on such matter, then the Series B Preferred
Stock and the Series A Preferred Stock shall have with respect to such matters
one vote per $25.00 of stated liquidation preference.
(f) Except as otherwise required by applicable law or as set forth
herein, the shares of Series B Preferred Stock shall not have any relative,
participating, optional or other special voting rights and powers and the
consent of the holders thereof shall not be required for the taking of any
corporate action.
9. REPORTS. So long as any of the Series B Preferred Stock is
outstanding, the Corporation will furnish the holders thereof with the quarterly
and annual financial reports, and reports on Form 8-K, that the Corporation is
required to file with the Securities and Exchange Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 or, in the event the
Corporation is not required to file such reports, reports containing the same
information as would be required in such reports.
10. PREEMPTIVE RIGHTS. The Corporation shall provide each holder of
Series B Preferred Stock with a written notice (a "PREEMPTIVE RIGHTS NOTICE") of
any proposed issuance by the Corporation of any Common Stock or securities
convertible into or exercisable or exchangeable for shares of Common Stock
(including, without limitation, rights, options or warrants to purchase Common
Stock) ("EQUITY SECURITIES") at least 30 days prior to the proposed issue date.
Such notice shall specify the price at which such Equity Securities are to be
issued and the other material terms of the issuance. Each holder of Series B
Preferred
18
Stock shall be entitled to purchase, at the price and on the terms at which such
Equity Securities are proposed to be issued specified in Preemptive Rights
Notice, the number of such Equity Securities that will enable such holder to
maintain its fully diluted percentage ownership of the Corporation. A holder of
Series B Preferred Stock may exercise its right under this paragraph 10 by
delivering written notice of its election to purchase Equity Securities to the
Corporation within 15 days of receipt of the Preemptive Rights Notice. A
delivery of such notice (which notice shall specify the number of Equity
Securities to be purchased by such holder) shall constitute a binding agreement
of such holder to purchase, at the price and on the terms specified in the
Preemptive Rights Notice, the number of Equity Securities specified in such
holder's notice. The Corporation shall not be under any obligation to consummate
any proposed issuance of Equity Securities, regardless of whether it shall have
delivered a Preemptive Rights Notice in respect of such issuance. The provisions
of this paragraph 10 shall not apply to Equity Securities issued (i) pursuant to
the Corporation's stock option plans or pursuant to any other Common Stock
related employee or director compensation plan of the Corporation approved by
the Corporation's Board of Directors, (ii) in connection with any acquisition,
merger, consolidation or similar transaction or (iii) in amounts less than
$500,000 in any single transaction or $2,000,000 in the aggregate.
11. GENERAL PROVISIONS. (a) The term "PERSON" as used herein means
any corporation, limited liability company, partnership, trust, organization,
association, other entity or individual.
(b) The term "OUTSTANDING", when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
subsidiary.
(c) The headings of the paragraphs, subparagraphs, clauses and
subclauses of this Certificate of Designations are for convenience of reference
only and shall not define, limit or affect any of the provisions hereof.
(d) Except as otherwise expressly provided hereunder, all notices
referred to herein shall be in writing and shall be delivered (i) to the
Corporation, at its principal executive offices and (ii) to any holder, at such
holder's address as it appears in the stock records of the Corporation (unless
otherwise indicated by any such holder).
19
IN WITNESS WHEREOF, Carver Bancorp, Inc. has caused this Certificate of
Designations to be signed and attested by the undersigned this 11th day of
January, 2000.
Carver Bancorp, Inc.
By: /s/ Deborah C. Wright
----------------------------------------
Name: Deborah C. Wright
Title: President and Chief Executive Officer
ATTEST:
/s/ Walter Bond
- -------------------------
Name: Walter Bond
Title: Vice President