EXHIBIT 4.5
CERTIFICATE OF DESIGNATIONS
OF
SERIES B 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
2,000,000 shares of Series B 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
2,000,000 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 B Preferred
Stock (hereinafter referred to as this "Series"), and the number of shares
constituting this Series shall be 2,000,000. 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
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that purpose, at the rates set forth below in this Section 2. Dividends on the
shares of this Series shall be payable, when, as and if declared by the Board of
Directors, quarterly in arrears on February __, May __, August __ and November
__ of each year (each, a "Dividend Payment Date"), commencing on November __,
1999, or if such date is not a Business Day (as defined below), the next
succeeding Business Day. Each such dividend 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 60 days nor less than 10 days preceding the
applicable payment date thereof, as shall be fixed by the Board of Directors;
PROVIDED, HOWEVER, that holders of shares of this Series called for redemption
on a Redemption Date falling between the record date associated with a Dividend
Payment Date and such Dividend Payment Date shall receive the applicable
dividend payment, together with all other accumulated and unpaid dividends on
such date as shall be fixed for redemption. Dividends on the shares of this
Series shall accumulate and be cumulative from the date of original issuance.
"Business Day" shall mean any day other than a Saturday or Sunday or a day on
which banking institutions in New York City are authorized or required by law or
executive order to remain closed.
(b) For each quarterly dividend period from August __, 1999 through and
including November __, 1999 (each, a "Dividend Period") through and including
the Dividend Period ending [ ]__, 2002, dividends payable on the shares of this
Series shall be payable at a rate per annum of the liquidation preference
thereof equal to ___% (the "Initial Dividend Period"). For each Dividend Period
after the Initial Dividend Period, dividends payable on the shares of this
Series shall be payable at a rate per annum of the liquidation preference
thereof equal to the Reset Rate (as defined below). 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
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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 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.
3. REMARKETING. The dividend rate on this Series shall be reset to the
Reset Rate on the third day preceding the Purchase Contract Settlement Date (as
defined below). The Corporation shall request, not later than 15 nor more than
30 calendar days prior to the Remarketing Date (as defined below), that the
Depositary (as defined below) notify the Holders of shares of this Series and
the holders of Corporate PIES of the Remarketing and of the procedures that must
be followed if a Holder of Corporate PIES wishes to make a Cash Settlement.
(a) Not later than 5:00 p.m., New York City time, on the seventh
Business Day preceding the Purchase Contract Settlement Date, each Holder may
elect to have the shares of this Series held by such Holder remarketed in the
Remarketing. Under Section 5.4 of the Purchase Contract Agreement, holders of
Corporate PIES that do not give notice of their intention to make a Cash
Settlement of the purchase contract component of their Corporate PIES prior to
such time in the manner specified in such Section, or that give such notice but
fail to deliver cash prior to 11:00 a.m., New York City time, on or prior to the
fifth Business Day preceding the Purchase Contract Settlement Date, shall be
deemed to have consented to the disposition of the shares of this Series
component of their Corporate PIES in the Remarketing. Holders of the shares of
this Series that are not a component of Corporate PIES wishing to have their
shares of this Series remarketed shall give to the Purchase Contract Agent
notice of their election prior to 11:00 a.m., New York City time on such fifth
Business Day. Any such notice shall be irrevocable and may not be conditioned
upon the level at which the Reset Rate is established in the Remarketing.
Promptly after 11:00 a.m., New York City time, on such fifth Business Day, the
Purchase Contract Agent, based on the notices received by it prior to such time
(including notices from the Purchase Contract Agent as to purchase contracts for
which Cash Settlement has been elected and cash received), shall notify the
Remarketing Agent of the number of shares of this Series to be tendered for
purchase in the Remarketing.
(b) If any Holder of shares of this Series does not give a notice of
its intention to make a Cash Settlement or gives such notice but fails to
deliver cash as described in Section 3(a)
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above, or gives a notice of election to have shares of this Series that are not
a component of Corporate PIES remarketed, then the shares of this Series of such
Holder shall be deemed tendered for purchase in the Remarketing, notwithstanding
any failure by such Holder to deliver or properly deliver such shares to the
Remarketing Agent for purchase.
(c) The right of each Holder to have shares of this Series tendered
for purchase shall be limited to the extent that (i) the Remarketing Agent
conducts a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
the shares of this Series tendered have not been called for redemption, (iii)
the Remarketing Agent is able to find a purchaser or purchasers for the tendered
shares of this Series and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent.
(d) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price equal to 100.50% of the
aggregate liquidation preference thereof, the shares of this Series tendered or
deemed tendered for purchase.
(e) If, as a result of the efforts described in Section 3(d), the
Remarketing Agent determines that it will be able to remarket all of the shares
of this Series tendered or deemed tendered for purchase at a price of 100.50% of
the aggregate liquidation preference of such shares prior to 4:00 p.m., New York
City time, on the Remarketing Date, the Remarketing Agent shall determine the
Reset Rate, which shall be the rate per annum (rounded to the nearest
one-thousandth (0.001) of one percent per annum) that the Remarketing Agent
determines, in its sole judgment, to be the lowest rate per annum that will
enable it to remarket all of the shares of this Series tendered or deemed
tendered for Remarketing.
(f) If none of the Holders of the shares of this Series or the
holders of the Corporate PIES elects to have shares of this Series remarketed in
the Remarketing, the Reset Rate shall be the rate determined by the Remarketing
Agent, in its sole discretion, as the rate that would have been established had
a Remarketing been held on the Remarketing Date.
(g) If, by 4:00 p.m., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all of the Preferred Securities
tendered or deemed tendered for purchase, a "Failed Remarketing" shall be deemed
to have occurred and the Remarketing Agent shall so advise by telephone the
Depositary and the Corporation. In the event of a Failed Remarketing, the Reset
Rate shall equal (1) the "AA" Composite Commercial Paper Rate (as defined
below), plus (2) the Applicable Margin (as defined below).
(h) By approximately 4:30 p.m., New York City time, on the
Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Depositary and the
Corporation of the Reset Rate determined in the Remarketing and the number of
shares of this Series sold in the Remarketing, (ii) each purchaser (or the
Depositary Participant thereof) of the Reset Rate and the number of shares of
this Series such purchaser is to purchase and (iii) each purchaser to give
instructions to its Depositary Participant to pay the purchase price on the
Purchase Contract Settlement Date in same day funds against delivery of the
shares of this Series purchased through the facilities of the Depositary.
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(i) In accordance with the Depositary's normal procedures, on the
Purchase Contract Settlement Date, the transactions described above with respect
to each Preferred Security tendered for purchase and sold in the Remarketing
shall be executed through the Depositary, and the accounts of the respective
Depositary Participants shall be debited and credited and such shares of this
Series delivered by book-entry as necessary to effect purchases and sales of
such shares of this Series. The Depositary shall make payment in accordance with
its normal procedures.
(j) If any Holder of shares of this Series selling shares of this
Series in the Remarketing fails to deliver such shares, the Depositary
Participant of such selling holder and of any other Person that was to have
purchased shares of this Series in the Remarketing may deliver to any such other
Person a number of shares of this Series that is less than the number of shares
of this Series that otherwise was to be purchased by such Person. In such event,
the number of shares of this Series to be so delivered shall be determined by
such Depositary Participant, and delivery of such lesser number of shares of
this Series shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any shares of
this Series that otherwise would remain unsold in the Remarketing. Neither the
Corporation nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of the shares of this Series for Remarketing.
(l) Under the Remarketing Agreement, the Corporation shall be liable
for, and shall pay, any and all costs and expenses incurred in connection with
the Remarketing.
(m) The tender and settlement procedures set in this Section 3,
including provisions for payment by purchasers of the shares of this Series in
the Remarketing, shall be subject to modification to the extent required by the
Depositary or if the book-entry system is no longer available for the shares of
this Series at the time of the Remarketing, to facilitate the tendering and
remarketing of the shares of this Series in certificated form. In addition, the
Remarketing Agent may modify the settlement procedures set forth herein in order
to facilitate the settlement process.
(n) Definitions:
""AA" COMPOSITE COMMERCIAL PAPER RATE" on any date shall mean (i) the
interest equivalent of the 60-day rate on commercial paper placed on behalf of
issuers whose corporate bonds are rated "AA" by S&P or the equivalent of such
rating by S&P or the equivalent of such rating by S&P or another rating agency,
as made available on a discount basis or otherwise by the Federal Reserve Board
for the business day immediately preceding such date or (ii) if the Federal
Reserve Board does not make available any such rate, then the arithmetic average
of those rates, as quoted on a discount basis or otherwise, by the Commercial
Paper Dealers to the Remarketing Agent for the close of business on the Business
Day next preceding such date. If any Commercial Paper Dealer does not quote a
rate required to determine the "AA" Composite Commercial Paper Rate, the "AA"
Composite Commercial Paper Rate will be determined on the basis of the quotation
or quotations furnished by the remaining Commercial Paper Dealer or
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Commercial Paper Dealers and any substitute commercial paper dealer or
substitute commercial paper dealers selected by the Remarketing Agent or, if the
Remarketing Agent does not select any such substitute commercial paper dealer or
substitute commercial paper dealers, by the remaining Commercial Paper Dealer or
Commercial Paper Dealers.
"APPLICABLE MARGIN" shall mean the spread determined as set forth below,
based on the prevailing rating of the Remarketed shares of this Series in effect
at the close of business on the Business Day immediately preceding the date of a
Failed Remarketing:
PREVAILING RATING SPREAD
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[AA/ "Aa"] ............................. 3.00%
[A/ "a"] ............................... 4.00%
[BBB/ "Baa"] ........................... 5.00%
[Below BBB/ "Baa"] ..................... 7.00%
For purposes of this definition, the "prevailing rating" of the
Remarketed shares of this Series shall be:
(i) [AA/ "Aa"] if such shares have a credit rating of [AA-] or
better by S&P and ["Aa3"] or better by Moody's or the equivalent of
such ratings by such agencies or a substitute rating agency or
substitute rating agencies selected by the Remarketing Agent;
(ii) if not under clause (i) above, then [A/ "a"] if the
Remarketed Securities have a credit rating of [A-] or better by S&P
and ["A3"] or better by Moody's or the equivalent of such ratings by
such agencies or a substitute rating agency or substitute rating
agencies selected by the Remarketing Agent;
(iii) if not under clauses (i) or (ii) above, then [BBB/
"Baa"] if the Remarketed Securities have a credit rating of [BBB-]
or better by S&P and ["Baa3"] or better by Moody's or the equivalent
of such ratings by such agencies or a substitute rating agency or
substitute rating agencies selected by the Remarketing Agent; or
(iv) if not under clauses (i) - (iii) above, then [Below BBB/
"Baa."]
"CASH SETTLEMENT" shall have the meaning specified in the Purchase
Contract Agreement.
"COMMERCIAL PAPER DEALERS" shall mean Lehman Commercial Paper Inc.,
Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
or their affiliates or successors, if such affiliates or successors are
commercial paper dealers.
"CORPORATE PIES" shall mean a stock purchase unit consisting of (A) a
stock purchase contract under which (i) the holder of the unit will purchase
from the Corporation, for $50.00 in
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cash, a certain number of shares of common stock of the Corporation and (ii) the
Corporation will pay such holder contract adjustment payments and (B) beneficial
ownership of a shares of this Series.
"DEPOSITARY" shall mean, with respect to shares of this Series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as depositary for
such shares, and initially shall be The Depository Trust Company.
"DEPOSITARY PARTICIPANT" shall mean a member of, or participant in, the
Depositary.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"GLOBAL SECURITY" shall mean a global Series B Preferred Stock Certificate
registered in the name of a Depositary or its nominee.
"HOLDER" shall mean any holder of shares of this Series.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"PURCHASE CONTRACT AGENT" shall mean the purchase contract agent under the
Purchase Contract Agreement, including successor purchase contract agents.
"PURCHASE CONTRACT AGREEMENT" shall mean the Purchase Contract Agreement
dated as of August [ ], 1999 between the Corporation and [ ],
as Purchase Contract Agent.
"PURCHASE CONTRACT SETTLEMENT DATE" shall mean [ ], 2002.
"REMARKETING AGENT" shall mean the remarketing agent selected by the
Corporation, including any successor remarketing agents selected by the
Corporation.
"REMARKETING DATE" shall mean the third Business Day preceding the
Purchase Contract Settlement Date.
"RESET RATE" shall mean shall mean the distribution rate per annum that
results from the Remarketing pursuant this Section 3.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw-Hill Corporation.
4. REDEMPTION. (a) OPTIONAL REDEMPTION. The shares of this Series are not
redeemable prior to [ ] __, 2002. 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 [ ] __, 2002
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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 (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
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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 4, 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.
5. 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.
6. 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 6, 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 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 6.
7. 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
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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.
8. 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 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
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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, or (ii) the reclassification of any
authorized stock of the Corporation into, 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 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 8(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
12
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 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
8(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 8(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 8(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
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