EXHIBIT 4.4
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
BANK UNITED CORP.
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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BANK UNITED CORP., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation on _________, 1999, pursuant to authority conferred upon the Board
of Directors by the provisions of the Restated Certificate of Incorporation of
the Corporation which authorize the issuance of up to 10,000,000 shares of
preferred stock of $0.01 par value per share (the "Preferred Stock"):
RESOLVED that, pursuant to resolutions of the Board of Directors of
Bank United Corp. (the "Corporation") adopted on ________, 1999, the issue of
2,300,000 shares of Series A Preferred Stock, $50 liquidation preference per
share ($0.01 par value), is hereby authorized and the designation, preferences
and privileges, voting rights, relative, participating, optional and other
special rights, and qualifications, limitations and restrictions of all
2,300,000 shares of this Series, in addition to those set forth in the Restated
Certificate of Incorporation of the Corporation, are hereby fixed as follows:
1. DESIGNATION. The designation of this Series shall be Series A Preferred
Stock (hereinafter referred to as this "Series"), and the number of shares
constituting this Series shall be 2,300,000. Shares of this Series shall have a
liquidation preference of $50. The number of authorized shares of this Series
may be reduced by further resolution duly adopted by the Board of Directors of
the Corporation or by any duly authorized committee of the Board of Directors
(collectively, the "Board of Directors") and by the filing of a certificate
pursuant to the provisions of the General Corporation Law of the State of
Delaware stating that such reduction has been so authorized, but the number of
authorized shares of this Series shall not be increased.
2. DIVIDENDS. (a) The holders of shares of this Series shall be entitled
to receive cash dividends, when, as and if declared by the Board of Directors,
out of funds legally available for that purpose, at the rates set forth below in
this Section 2. Dividends on the shares of this Series
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shall be payable, when, as and if declared by the Board of Directors, on
February __, May __, August __ and November __ of each year (each, a "Dividend
Payment Date"), commencing on November __, 1999. Each such dividend shall be
paid to the holders of record of shares of this Series as they appear on the
stock register of the Corporation on such record date, not more than 45 days
preceding the payment date thereof, as shall be fixed by the Board of Directors.
Dividends on the shares of this Series shall be cumulative from the date of
issue.
(b) Dividends payable on the shares of this Series for the period from
August __, 1999 through and including November __, 1999 (the "Initial Dividend
Period") shall be $____ per share. For each quarterly dividend period after the
Initial Dividend Period (each such quarterly dividend period and the Initial
Dividend Period being hereinafter referred to individually as a "Dividend
Period") through and including the Dividend Period ending February __, 2000,
dividends payable on the shares of this Series shall be payable at a rate per
annum of the liquidation preference thereof equal to ___%. For each Dividend
Period beginning on or after February __, 2000, dividends payable on the shares
of this Series shall be payable at a rate per annum of the liquidation
preference thereof equal to __%. The amount of dividends per share for each
Dividend Period shall be computed by dividing the applicable rate for such
Dividend Period by four and applying the resulting rate to the liquidation
preference per share of this Series. Each Dividend Period (other than the
Initial Dividend Period) shall commence on a Dividend Payment Date and shall end
on and include the day next preceding the next Dividend Payment Date.
(c) Dividends payable on this Series for any period greater or less than a
full Dividend Period, other than the Initial Dividend Period, shall be computed
on the basis of a 360-day year consisting of twelve 30-day months and, for any
period less than one month, the actual number of days elapsed in the period.
(d) No full dividends shall be declared or paid or set apart for payment
on the Preferred Stock of any series ranking, as to dividends, on a parity with
or junior to this Series for any period unless full cumulative dividends on the
shares of this Series for all full Dividend Periods ending on or prior to the
date of such dividends on such other series of Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment. When dividends are not paid in full,
as aforesaid, upon the shares of this Series and any other series of Preferred
Stock ranking on a parity as to dividends with this Series, all dividends
declared upon shares of this Series and any other series of Preferred Stock
ranking on a parity as to dividends with this Series shall be declared pro rata
so that the amount of dividends declared per share on this Series and such other
Preferred Stock shall in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the shares of this Series and such
other Preferred Stock bear to each other. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment or payments on
this Series which may be in arrears.
(e) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (d) of this Section 2) shall be declared
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or paid or set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with this
Series as to dividends or upon liquidation, nor shall any Common Stock or any
other stock of the Corporation ranking junior to or on a parity with this Series
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon liquidation), unless, in each
case, full cumulative dividends on all outstanding shares of this Series shall
have been paid or declared and set aside for payment.
(f) If any dividends payable on this Series with respect to any fiscal
year of the Corporation are not eligible for the dividends-received deduction
set forth in Section 243(a)(1) of the Internal Revenue Code of 1986, as amended
(the "Code") (or any successor provision), solely because this Series is treated
as indebtedness pursuant to a final determination within the meaning of Section
1313(a) of the Code to which the Corporation or any U.S. corporate holder is a
party ("Applicable Distribution(s)"), the Corporation shall, within 45 days
after the receipt by the Corporation of such determination, provide notice
thereof to the transfer agent. The transfer agent shall mail a copy of such
notice to each Qualified Investor (as defined below) at the address specified in
the records of the transfer agent as promptly as practicable after its receipt
of such notice from the Corporation. The Corporation shall, within fifteen days
after such notice is given to the transfer agent, pay to the transfer agent an
amount equal to the aggregate Additional Amounts (as defined below) with respect
to all Applicable Distributions during such fiscal year. Upon receipt of such
aggregate Additional Amounts and receipt of an affidavit from each Qualified
Investor, on a form provided by Bank United, certifying that (i) the Qualified
Investor is a domestic taxable corporation and (ii) if the preferred stock had
been treated as debt for U.S. income tax purposes, the dividends-received
deduction with respect to each Applicable Distribution would have been allowed
and available to the Qualified Investor, in light of its particular facts and
circumstances, under all relevant Sections of the Internal Revenue Code,
including, without limitation, Section 246(c), Section 246A and Section 1059,
the transfer agent shall distribute to each such Qualified Investor the
Additional Amount to which such Qualified Investor is entitled with respect to
each Applicable Distribution received by such Qualified Investor during such
fiscal year. Any portion of the aggregate Additional Amounts not distributed by
the transfer agent shall be returned to the Corporation within 90 days of the
transfer agent's receipt of those amounts.
"Qualified Investor" means a holder of record during any fiscal
year which was entitled to receive an Applicable Distribution during such
fiscal year.
"Additional Amount(s)" means payment with respect to any Applicable
Distribution of an amount which, when taken together with such Applicable
Distribution, would cause the net yield in dollars (after federal income tax
consequences) from the aggregate of both the Applicable Distributions and the
Additional Amount, to be equal to the net yield in dollars (after federal income
tax consequences) that would have been realized if the amount of the aggregate
Applicable Distributions treated as a return of capital instead had been treated
as a dividend, giving effect to the dividends-received deduction, for federal
income tax purposes.
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Such Additional Amount shall be calculated with consideration being given to the
time value of money, applying the corporate underpayment rate as defined in
Section 6622(a)(2) of the Code as the interest factor, assuming the Additional
Amount is subject to tax as ordinary income, and using the maximum marginal
corporate federal tax rate applicable to ordinary income.
The foregoing provisions shall apply to the Initial Dividend Period
and each subsequent Dividend Period.
3. REDEMPTION. (a) OPTIONAL REDEMPTION. The shares of this Series are not
redeemable prior to February __, 2000. The Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or from time to
time, on or after February __, 2000 at a redemption price of $50 per share plus
accrued and unpaid cumulative dividends thereon (whether or not declared) to the
date fixed for redemption.
(b) MANDATORY REDEMPTION. The Corporation shall redeem, from any source of
funds legally available therefor, all issued and outstanding shares of this
Series, in whole and not in part, on August __, 2004, at a redemption price of
$50 per share plus accrued and unpaid cumulative dividends thereon (whether or
not declared) to the date fixed for redemption.
(c) REDEMPTION PROCEDURES.
(i) In the event that, pursuant to paragraph (a) above, fewer than
all the outstanding shares of this Series are to be redeemed, the number
of shares to be redeemed shall be determined by the Board of Directors and
the shares to be redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors or by any other method as may be
determined by the Board of Directors in its sole discretion to be
equitable, provided that such method satisfies any applicable requirements
of any securities exchange on which this Series is listed.
(ii) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 or more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (i) the redemption date; (ii)
the number of shares of this Series to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that dividends on
the shares to be redeemed shall cease to accrue on the redemption date.
(iii) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of this Series so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation
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(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 shall so require and the notice shall
so state), such shares shall be redeemed by the Corporation at the
redemption price aforesaid. In case fewer than all the shares represented
by any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(iv) Any shares of this Series which shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
(v) Notwithstanding the foregoing provisions of this Section 3, if
full cumulative dividends on all outstanding shares of this Series are in
arrears, no shares of this Series shall be redeemed unless all outstanding
shares of this Series are simultaneously redeemed, and the Corporation
shall not purchase or otherwise acquire any shares of this Series;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of this Series pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of this
Series.
4. CONVERSION. The holders of shares of this Series shall not have any
rights to convert such shares into shares of any other class or series of
capital stock of the Corporation.
5. LIQUIDATION RIGHTS. (a) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the holders of the shares of this
Series shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its stockholders, before any payment
or distribution shall be made on the Common Stock or on any other class of stock
ranking junior to this Series upon liquidation, the amount of $50 per share,
plus accrued and unpaid cumulative dividends (whether or not declared) to the
date of the liquidating distribution.
(b) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section 5, the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(c) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Corporation, the amounts payable with respect to the shares of
this Series and any other shares of stock of the Corporation ranking as to any
such distribution on a parity with the shares of this Series are not paid in
full, the holders of the shares of this Series and of such other shares shall
share ratably in any such distribution of assets of the Corporation in
proportion to the full respective distributions to which they are entitled.
(d) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other
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corporation or the merger or consolidation of any other corporation into or with
the Corporation, shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section 5.
6. RANKING. For purposes of this resolution, any stock of any class or
classes of the Corporation shall be deemed to rank:
(a) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(b) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series (and whether or not such dividends shall
accumulate), if the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, without preference or priority, one
over the other, as between the holders of such stock and the holders of shares
of this Series; and
(c) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
7. VOTING RIGHTS. The holders of the shares of this Series shall have the
following voting rights:
(a) Each share of this Series will have the right to vote, with each share
of this Series having 0.10 vote, in connection with matters submitted generally
to the holders of the common stock and other capital stock of the Corporation
entitled to vote in respect of matters submitted to the stockholders of the
Corporation generally. For these purposes, the holders of the shares of this
Series and the holders of the common stock and other capital stock of the
Corporation will vote as a single class.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the approval of the holders of at least
two-thirds of the then-outstanding shares of this Series, given in person or by
proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of this Series shall vote together as a separate
class, shall be required for authorizing, effecting or validating any amendment,
alteration or repeal, whether by merger, consolidation or otherwise, of any of
the provisions of the Restated Certificate of Incorporation or of any
certificate amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar document relating to any series of
Preferred Stock) that adversely affect the powers, preferences, privileges or
rights of this
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Series; PROVIDED, HOWEVER, that the creation and issuance of any other class or
series of preferred stock, or any increase in the number of authorized shares of
any preferred stock of any other class or series, in each case ranking on a
parity with or junior to this Series with respect to the payment of dividends
and the distribution of assets upon liquidation, dissolution or winding up of
the affairs of the Corporation shall not be deemed to adversely affect such
powers, preferences or other special rights.
(c) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the approval of the holders of at least
two-thirds of all of the then-outstanding shares of this Series and all other
series of preferred stock ranking on a parity with shares of this Series, either
as to dividends or upon liquidation, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of
shares of this Series and such other series of preferred stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating (i) the creation, authorization or issuance
of, (ii) the reclassification of any authorized stock of the Corporation into,
or (iii) the creation, authorization or issuance of any obligation or security
convertible into or evidencing the right to purchase, any additional class or
series of stock ranking prior to this Series, either as to dividends or upon
liquidation.
(d) (i) If at any time dividends on this Series shall be in arrears in an
amount equal to six quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a "default
period") which shall extend until such time as all accrued and unpaid dividends
for all previous dividend periods and for the current dividend period on all
shares of this Series then outstanding shall have been declared and paid or set
apart for payment. During each default period, the holders of shares of this
Series and other shares of Preferred Stock on which dividends are in arrears and
as to which similar voting rights have been conferred, voting as a class,
irrespective of series, shall have the right to elect two Directors to the Board
of Directors of the Corporation.
(ii) During any default period, such voting right of the holders of
this Series may be exercised by written consent, at a special meeting
called pursuant to Section 7(d)(iii) hereof or at any annual meeting of
stockholders. The absence of a quorum of the holders of Common Stock at
any such special or annual meeting shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting at which
the holders of Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting as a
class, to elect Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two Directors or, if such right is
exercised at an annual meeting, to elect two Directors. If the number
which may be so elected at any special meeting does not amount to the
required number, the holders of Preferred Stock shall have the right to
make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of
the Preferred Stock shall have exercised their right to elect Directors in
any default period and during the continuance of such period, the number
of Directors shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided. Any Director elected by a
vote of the holders of Preferred Stock may be
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removed from office, with or without cause, only by the affirmative vote
of the requisite percentage of holders of Preferred Stock required to
elect Directors as specified in this Section 7(d).
(iii) Unless the holders of Preferred Stock, during an existing
default period, shall have previously exercised their right to elect
Directors, the Board of Directors may order, or any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective of
series, on which dividends are in arrears and as to which similar voting
rights have been conferred, may request, the calling of a special meeting
of the holders of Preferred Stock, which meeting shall thereupon be called
by the Chairman, a Vice Chairman or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this Section 7(d)(iii)
shall be given to each holder of record of Preferred Stock entitled to
vote thereat by mailing a copy of such notice to him at his last address
as the same appears on the books of the Corporation. Such meeting shall be
called for a time not earlier than 10 days and not later than 60 days
after such order or request or, in default of the calling of such meeting
within 60 days after such order or request, such meeting may be called on
similar notice by any shareholder or shareholders owning in the aggregate
not less than 10% of the total number of shares of Preferred Stock
outstanding, irrespective of series, entitled to vote thereat.
(iv) In any default period the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors constituting the Board of
Directors until the holders of Preferred Stock, voting as a class, shall
have exercised their right to elect two Directors, after the exercise of
which right (A) the Directors so elected by the holders of Preferred Stock
shall continue in office until their successors shall have been elected by
such holders or until the expiration of the default period, and (B) any
vacancy on the Board of Directors may (except as provided in Section
7(d)(ii) hereof) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which
elected the Director whose office shall have become vacant. References in
this Section 7(d) to Directors elected by the holders of a particular
class of stock shall include Directors elected by such Directors to fill
vacancies as provided in clause (B) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (A) the
right of the holders of Preferred Stock as a class to elect Directors
shall cease, (B) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (C) the number of
Directors shall be such number as may be provided for in the Restated
Certificate of Incorporation or Bylaws of the Corporation or by resolution
of the Board of Directors, irrespective of any increase made pursuant to
the provisions of Section 7(d)(ii) hereof (such number being subject,
however, to change thereafter in any manner provided by law or in the
Restated Certificate of Incorporation or Bylaws of the Corporation). Any
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vacancies on the Board of Directors effected by the provisions of clauses
(B) and (C) in the preceding sentence may be filled by a majority of the
remaining Directors.
(e) Except as set forth herein or required by applicable law, holders of
shares of this Series shall have no voting rights and their consent shall not be
required for taking any corporate action.
[Signature appears on subsequent page.]
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IN WITNESS WHEREOF, Bank United Corp. has caused its corporate seal
to be hereunto affixed and this Certificate to be signed by its [Corporate
Secretary], ___________, this __th day of August, 1999.
BANK UNITED CORP.
By:_____________________________
Corporate Secretary