Exhibit 4.1
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 August 5, 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 August 5, 1999,
the issue of 1,200,000 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 1,200,000 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 1,200,000. Shares of this Series shall
have a liquidation preference of $50. The number of authorized shares of this
Series may be reduced (but not below the number then issued and outstanding) 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 15, May 15, August 15 and November
15 of each year (each, a "Dividend Payment Date"), commencing on November 15,
1999, or if such date is not a Business Day (as defined below), the next
succeeding Business Day. 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 the applicable Record Date, 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) Dividends payable on the shares of this Series for the period from
August 10, 1999 through and including November 14, 1999 (the "Initial Dividend
Period") shall be $1.017 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 15, 2000,
dividends payable on the shares of this Series shall be payable at a rate per
annum of the liquidation preference thereof equal to 7.55%. For each Dividend
Period beginning on or after February 15, 2000, dividends payable on the shares
of this Series shall be payable at a rate per annum of the liquidation
preference thereof equal to 8.55%. 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
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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 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 for all full
Dividend Periods ending on or prior to the date of such other dividend,
distribution, redemption, purchase or other acquisition, shall have been or
contemporaneously are paid or declared and a sum sufficient for the payment
thereof set aside for such 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, together with instructions for furnishing
the certifications referred to below to the transfer agent. 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
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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 U.S. corporate 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 not treated as a dividend instead had
been treated as a dividend, giving effect to the dividends-received deduction,
for federal income tax purposes. 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 15, 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 15, 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 15, 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.
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(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 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
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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 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.
(d) The shares of Series B Preferred Stock of the Corporation shall
rank on a parity with the shares of this Series.
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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 such other capital stock of
the Corporation, so entitled to vote, shall 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 of the Corporation
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 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.
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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 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 on such record date, not more than 45 days prior to
the date of such notice, as the Board of Directors may fix for this
purpose. 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.
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(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 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, Randolph C. Henson, this 9th day of August, 1999.
BANK UNITED CORP.
By: /s/ Randolph C. Henson
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Randolph C. Henson
Corporate Secretary