EXHIBIT 4.2
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 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 2,300,000 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 2,300,000 shares of such 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 2,300,000. 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 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, quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year (each,
a "Dividend Payment Date"), commencing on November 16, 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) For each quarterly dividend period (each, a "Dividend Period") from
August 10, 1999 through and including the Dividend Period ending August 16,
2002, dividends payable on the shares of this Series shall be payable at a rate
per annum of the liquidation preference thereof equal to 7.25% (the "Initial
Rate Period"). For each Dividend Period after the Initial Rate 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 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.
3. Remarketing. (a) The dividend rate on this Series shall be reset to
the Reset Rate on 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 of its obligation to
purchase Common Stock of the Corporation pursuant to the Purchase Contract
Agreement.
(b) 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. 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 the
Purchase Contract Agreement, 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 that are a 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.
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(c) 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(b) 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.
(d) 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.
(e) 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.
(f) If, as a result of the efforts described in Section 3(e),
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.
(g) 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 of all the shares of this Series been held on the Remarketing
Date.
(h) 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).
(i) 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
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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.
(j) 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.
(k) 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.
(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
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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 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
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."
"Certificate" shall mean a Corporate PIES Certificate.
"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.
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"Common Stock" shall mean the Common Stock, par value $0.01 per share,
of the Corporation.
"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 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.
"Corporate PIES Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Corporate PIES specified
on such certificate.
"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 Certificate" means a Certificate that evidences all or part of
the shares of this Series and is registered in the name of a clearing agency or
a nominee thereof.
"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 10, 1999 between the Corporation and The First
National Bank of Chicago, as Purchase Contract Agent.
"Purchase Contract Settlement Date" shall mean August 16, 2002.
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"Record Date" for dividends on the shares of this Series on any Payment
Date shall mean, as to any Global Certificate, the Business Day next preceding
such Payment Date, and as to any other Certificate, 15 Business Days prior to
such Payment Date.
"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 October 16, 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 October 16, 2002 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 16, 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
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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
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.
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(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 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 A Preferred Stock of the Corporation shall
rank on a parity with the shares of this Series.
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
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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. 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
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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 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.
(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
13
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.]
14
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
----------------------
Randolph C. Henson
Corporate Secretary