Exhibit 3.1
SALISBURY BANCORP, INC.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A
The Board of Directors of the Corporation, in accordance with the
Certificate of Incorporation and bylaws of the Corporation and applicable law,
adopted the following resolution on March 10, 2009 creating a series of Eight
Thousand, Eight Hundred Sixteen (8,816) shares of Preferred Stock of the
Corporation designated as "Fixed Rate Cumulative Perpetual Preferred Stock,
Series A."
RESOLVED, that pursuant to the provisions of the Certificate of
Incorporation and the Bylaws of the Corporation and applicable law, a series of
Preferred Stock, par value $.01 per share, of the Corporation be and hereby is
created, and that the designation and number of shares of such series, and the
voting and other powers, preferences and relative, participating, optional or
other rights, and the qualifications, limitations and restrictions thereof, of
the shares of such series, are as follows:
Part 1. Designation and Number of Shares. There is hereby created out
of the authorized and unissued shares of preferred stock of the Corporation a
series of preferred stock designated as the "Fixed Rate Cumulative Perpetual
Preferred Stock, Series A" (the "Designated Preferred Stock"). The authorized
number of shares of Designated Preferred Stock shall be Eight Thousand, Eight
Hundred Sixteen (8,816).
Part 2. Standard Provisions. The Standard Provisions contained in Annex
A attached hereto are incorporated herein by reference in their entirety and
shall be deemed to be a part of this resolution to the same extent as if such
provisions had been set forth in full herein.
Part 3. Definitions. The following terms are used in this resolution
(including the Standard Provisions in Annex A hereto) as defined below:
(a) "Common Stock" means the common stock, par value $0.10 per share,
of the Corporation.
(b) "Dividend Payment Date" means February 15, May 15, August 15 and
November 15 of each year.
(c) "Junior Stock" means the Common Stock and any other class or series
of stock of the Corporation the terms of which expressly provide that it ranks
junior to Designated Preferred Stock as to dividend rights and/or as to rights
on liquidation, dissolution or winding up of the Corporation.
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(d) "Liquidation Amount" means $1,000 per share of Designated Preferred
Stock
(e) "Minimum Amount" means $2,204,000.
(f) "Parity Stock" means any class or series of stock of the
Corporation (other than Designated Preferred Stock) the terms of which do not
expressly provide that such class or series will rank senior or junior to
Designated Preferred Stock as to dividend rights and/or as to rights on
liquidation, dissolution or winding up of the Corporation (in each case without
regard to whether dividends accrue cumulatively or non-cumulatively).
(g) "Signing Date" means the Original Issue Date.
Part 4. Certain Voting Matters. Holders of shares of Designated
Preferred Stock will be entitled to one vote for each such share on any matter
on which holders of Designated Preferred Stock are entitled to vote, including
any action by written consent.
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ANNEX A
STANDARD PROVISIONS
Section 1. General Matters. Each share of Designated Preferred Stock
shall be identical in all respects to every other share of Designated Preferred
Stock. The Designated Preferred Stock shall be perpetual, subject to the
provisions of Section 5 of these Standard Provisions that form a part of the
Certificate of Designations. The Designated Preferred Stock shall rank equally
with Parity Stock and shall rank senior to Junior Stock with respect to the
payment of dividends and the distribution of assets in the event of any
dissolution, liquidation or winding up of the Corporation.
Section 2. Standard Definitions. As used herein with respect to
Designated Preferred Stock:
(a) "Applicable Dividend Rate" means (i) during the period from the
Original Issue Date to, but excluding, the first day of the first Dividend
Period commencing on or after the fifth anniversary of the Original Issue Date,
5% per annum and (ii) from and after the first day of the first Dividend Period
commencing on or after the fifth anniversary of the Original Issue Date, 9% per
annum.
(b) "Appropriate Federal Banking Agency" means the "appropriate Federal
banking agency" with respect to the Corporation as defined in Section 3(q) of
the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)), or any successor
provision.
(c) "Business Combination" means a merger, consolidation, statutory
share exchange or similar transaction that requires the approval of the
Corporation's stockholders.
(d) "Business Day" means any day except Saturday, Sunday and any day on
which banking institutions in the State of New York generally are authorized or
required by law or other governmental actions to close.
(e) "Bylaws" means the bylaws of the Corporation, as they may be
amended from time to time.
(f) "Certificate of Designations" means the Certificate of Designations
or comparable instrument relating to the Designated Preferred Stock, of which
these Standard Provisions form a part, as it may be amended from time to time.
(g) "Charter" means the Corporation's certificate or articles of
incorporation, articles of association, or similar organizational document.
(h) "Dividend Period" has the meaning set forth in Section 3(a).
(i) "Dividend Record Date" has the meaning set forth in Section 3(a).
(j) "Liquidation Preference" has the meaning set forth in Section 4(a).
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(k) "Original Issue Date" means the date on which shares of Designated
Preferred Stock are first issued.
(l) "Preferred Director" has the meaning set forth in Section 7(b).
(m) "Preferred Stock" means any and all series of preferred stock of
the Corporation, including the Designated Preferred Stock.
(n) "Qualified Equity Offering" means the sale and issuance for cash by
the Corporation to persons other than the Corporation or any of its subsidiaries
after the Original Issue Date of shares of perpetual Preferred Stock, Common
Stock or any combination of such stock, that, in each case, qualify as and may
be included in Tier 1 capital of the Corporation at the time of issuance under
the applicable risk-based capital guidelines of the Corporation's Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant to
agreements or arrangements entered into, or pursuant to financing plans which
were publicly announced, on or prior to October 13, 2008).
(o) "Share Dilution Amount" has the meaning set forth in Section 3(b).
(p) "Standard Provisions" mean these Standard Provisions that form a
part of the Certificate of Designations relating to the Designated Preferred
Stock.
(q) "Successor Preferred Stock" has the meaning set forth in Section
5(a).
(r) "Voting Parity Stock" means, with regard to any matter as to which
the holders of Designated Preferred Stock are entitled to vote as specified in
Sections 7(a) and 7(b) of these Standard Provisions that form a part of the
Certificate of Designations, any and all series of Parity Stock upon which like
voting rights have been conferred and are exercisable with respect to such
matter.
Section 3. Dividends.
(a) Rate. Holders of Designated Preferred Stock shall be entitled to
receive, on each share of Designated Preferred Stock if, as and when declared by
the Board of Directors or any duly authorized committee of the Board of
Directors, but only out of assets legally available therefor, cumulative cash
dividends with respect to each Dividend Period (as defined below) at a rate per
annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount per
share of Designated Preferred Stock and (ii) the amount of accrued and unpaid
dividends for any prior Dividend Period on such share of Designated Preferred
Stock, if any. Such dividends shall begin to accrue and be cumulative from the
Original Issue Date, shall compound on each subsequent Dividend Payment Date
(i.e., no dividends shall accrue on other dividends unless and until the first
Dividend Payment Date for such other dividends has passed without such other
dividends having been paid on such date) and shall be payable quarterly in
arrears on each Dividend Payment Date, commencing with the first such Dividend
Payment Date to occur at least 20 calendar days after the Original Issue Date.
In the event that any Dividend Payment Date would otherwise fall on a day that
is not a Business Day, the dividend payment due on that date will be postponed
to the next day that is a Business Day and no additional dividends will accrue
as a result of that postponement. The period from and including any Dividend
Payment Date to, but excluding, the next Dividend Payment Date is a "Dividend
Period", provided that the initial Dividend Period shall be the period from and
including the Original Issue Date to, but excluding, the next Dividend Payment
Date.
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Dividends that are payable on Designated Preferred Stock in respect of
any Dividend Period shall be computed on the basis of a 360-day year consisting
of twelve 30-day months. The amount of dividends payable on Designated Preferred
Stock on any date prior to the end of a Dividend Period, and for the initial
Dividend Period, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months, and actual days elapsed over a 30-day month.
Dividends that are payable on Designated Preferred Stock on any
Dividend Payment Date will be payable to holders of record of Designated
Preferred Stock as they appear on the stock register of the Corporation on the
applicable record date, which shall be the 15th calendar day immediately
preceding such Dividend Payment Date or such other record date fixed by the
Board of Directors or any duly authorized committee of the Board of Directors
that is not more than 60 nor less than 10 days prior to such Dividend Payment
Date (each, a "Dividend Record Date"). Any such day that is a Dividend Record
Date shall be a Dividend Record Date whether or not such day is a Business Day.
Holders of Designated Preferred Stock shall not be entitled to any
dividends, whether payable in cash, securities or other property, other than
dividends (if any) declared and payable on Designated Preferred Stock as
specified in this Section 3 (subject to the other provisions of the Certificate
of Designations).
(b) Priority of Dividends. So long as any share of Designated Preferred
Stock remains outstanding, no dividend or distribution shall be declared or paid
on the Common Stock or any other shares of Junior Stock (other than dividends
payable solely in shares of Common Stock) or Parity Stock, subject to the
immediately following paragraph in the case of Parity Stock, and no Common
Stock, Junior Stock or Parity Stock shall be, directly or indirectly, purchased,
redeemed or otherwise acquired for consideration by the Corporation or any of
its subsidiaries unless all accrued and unpaid dividends for all past Dividend
Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such amount), on all
outstanding shares of Designated Preferred Stock have been or are
contemporaneously declared and paid in full (or have been declared and a sum
sufficient for the payment thereof has been set aside for the benefit of the
holders of shares of Designated Preferred Stock on the applicable record date).
The foregoing limitation shall not apply to (i) redemptions, purchases or other
acquisitions of shares of Common Stock or other Junior Stock in connection with
the administration of any employee benefit plan in the ordinary course of
business (including purchases to offset the Share Dilution Amount (as defined
below) pursuant to a publicly announced repurchase plan) and consistent with
past practice, provided that any purchases to offset the Share Dilution Amount
shall in no event exceed the Share Dilution Amount; (ii) purchases or other
acquisitions by a broker-dealer subsidiary of the Corporation solely for the
purpose of market-making, stabilization or customer facilitation transactions in
Junior Stock or Parity Stock in the ordinary course of its business; (iii)
purchases by a broker-dealer subsidiary of the Corporation of capital stock of
the Corporation for resale pursuant to an offering by the Corporation of such
capital stock underwritten by such broker-dealer subsidiary; (iv) any dividends
or distributions of rights or Junior Stock in connection with a stockholders'
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rights plan or any redemption or repurchase of rights pursuant to any
stockholders' rights plan; (v) the acquisition by the Corporation or any of its
subsidiaries of record ownership in Junior Stock or Parity Stock for the
beneficial ownership of any other persons (other than the Corporation or any of
its subsidiaries), including as trustees or custodians; and (vi) the exchange or
conversion of Junior Stock for or into other Junior Stock or of Parity Stock for
or into other Parity Stock (with the same or lesser aggregate liquidation
amount) or Junior Stock, in each case, solely to the extent required pursuant to
binding contractual agreements entered into prior to the Signing Date or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for Common Stock. "Share Dilution Amount" means the increase in the
number of diluted shares outstanding (determined in accordance with generally
accepted accounting principles in the United States, and as measured from the
date of the Corporation's consolidated financial statements most recently filed
with the Securities and Exchange Commission prior to the Original Issue Date)
resulting from the grant, vesting or exercise of equity-based compensation to
employees and equitably adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.
When dividends are not paid (or declared and a sum sufficient for
payment thereof set aside for the benefit of the holders thereof on the
applicable record date) on any Dividend Payment Date (or, in the case of Parity
Stock having dividend payment dates different from the Dividend Payment Dates,
on a dividend payment date falling within a Dividend Period related to such
Dividend Payment Date) in full upon Designated Preferred Stock and any shares of
Parity Stock, all dividends declared on Designated Preferred Stock and all such
Parity Stock and payable on such Dividend Payment Date (or, in the case of
Parity Stock having dividend payment dates different from the Dividend Payment
Dates, on a dividend payment date falling within the Dividend Period related to
such Dividend Payment Date) shall be declared pro rata so that the respective
amounts of such dividends declared shall bear the same ratio to each other as
all accrued and unpaid dividends per share on the shares of Designated Preferred
Stock (including, if applicable as provided in Section 3(a) above, dividends on
such amount) and all Parity Stock payable on such Dividend Payment Date (or, in
the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within the Dividend
Period related to such Dividend Payment Date) (subject to their having been
declared by the Board of Directors or a duly authorized committee of the Board
of Directors out of legally available funds and including, in the case of Parity
Stock that bears cumulative dividends, all accrued but unpaid dividends) bear to
each other. If the Board of Directors or a duly authorized committee of the
Board of Directors determines not to pay any dividend or a full dividend on a
Dividend Payment Date, the Corporation will provide written notice to the
holders of Designated Preferred Stock prior to such Dividend Payment Date.
Subject to the foregoing, and not otherwise, such dividends (payable in
cash, securities or other property) as may be determined by the Board of
Directors or any duly authorized committee of the Board of Directors may be
declared and paid on any securities, including Common Stock and other Junior
Stock, from time to time out of any funds legally available for such payment,
and holders of Designated Preferred Stock shall not be entitled to participate
in any such dividends.
Section 4. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Designated Preferred Stock shall be
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entitled to receive for each share of Designated Preferred Stock, out of the
assets of the Corporation or proceeds thereof (whether capital or surplus)
available for distribution to stockholders of the Corporation, subject to the
rights of any creditors of the Corporation, before any distribution of such
assets or proceeds is made to or set aside for the holders of Common Stock and
any other stock of the Corporation ranking junior to Designated Preferred Stock
as to such distribution, payment in full in an amount equal to the sum of (i)
the Liquidation Amount per share and (ii) the amount of any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above, dividends
on such amount), whether or not declared, to the date of payment (such amounts
collectively, the "Liquidation Preference").
(b) Partial Payment. If in any distribution described in Section 4(a)
above the assets of the Corporation or proceeds thereof are not sufficient to
pay in full the amounts payable with respect to all outstanding shares of
Designated Preferred Stock and the corresponding amounts payable with respect of
any other stock of the Corporation ranking equally with Designated Preferred
Stock as to such distribution, holders of Designated Preferred Stock and the
holders of such other stock shall share ratably in any such distribution in
proportion to the full respective distributions to which they are entitled.
(c) Residual Distributions. If the Liquidation Preference has been paid
in full to all holders of Designated Preferred Stock and the corresponding
amounts payable with respect of any other stock of the Corporation ranking
equally with Designated Preferred Stock as to such distribution has been paid in
full, the holders of other stock of the Corporation shall be entitled to receive
all remaining assets of the Corporation (or proceeds thereof) according to their
respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For
purposes of this Section 4, the merger or consolidation of the Corporation with
any other corporation or other entity, including a merger or consolidation in
which the holders of Designated Preferred Stock receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash,
securities or other property) of all or substantially all of the assets of the
Corporation, shall not constitute a liquidation, dissolution or winding up of
the Corporation.
Section 5. Redemption.
(a) Optional Redemption. Except as provided below, the Designated
Preferred Stock may not be redeemed prior to the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date. On or
after the first Dividend Payment Date falling on or after the third anniversary
of the Original Issue Date, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, in whole or in
part, at any time and from time to time, out of funds legally available
therefor, the shares of Designated Preferred Stock at the time outstanding, upon
notice given as provided in Section 5(c) below, at a redemption price equal to
the sum of (i) the Liquidation Amount per share and (ii) except as otherwise
provided below, any accrued and unpaid dividends (including, if applicable as
provided in Section 3(a) above, dividends on such amount) (regardless of whether
any dividends are actually declared) to, but excluding, the date fixed for
redemption.
Notwithstanding the foregoing, prior to the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date, the
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Corporation, at its option, subject to the approval of the Appropriate Federal
Banking Agency, may redeem, in whole or in part, at any time and from time to
time, the shares of Designated Preferred Stock at the time outstanding, upon
notice given as provided in Section 5(c) below, at a redemption price equal to
the sum of (i) the Liquidation Amount per share and (ii) except as otherwise
provided below, any accrued and unpaid dividends (including, if applicable as
provided in Section 3(a) above, dividends on such amount) (regardless of whether
any dividends are actually declared) to, but excluding, the date fixed for
redemption; provided that (x) the Corporation (or any successor by Business
Combination) has received aggregate gross proceeds of not less than the Minimum
Amount (plus the "Minimum Amount" as defined in the relevant certificate of
designations for each other outstanding series of preferred stock of such
successor that was originally issued to the United States Department of the
Treasury (the "Successor Preferred Stock") in connection with the Troubled Asset
Relief Program Capital Purchase Program) from one or more Qualified Equity
Offerings (including Qualified Equity Offerings of such successor), and (y) the
aggregate redemption price of the Designated Preferred Stock (and any Successor
Preferred Stock) redeemed pursuant to this paragraph may not exceed the
aggregate net cash proceeds received by the Corporation (or any successor by
Business Combination) from such Qualified Equity Offerings (including Qualified
Equity Offerings of such successor).
The redemption price for any shares of Designated Preferred Stock shall
be payable on the redemption date to the holder of such shares against surrender
of the certificate(s) evidencing such shares to the Corporation or its agent.
Any declared but unpaid dividends payable on a redemption date that occurs
subsequent to the Dividend Record Date for a Dividend Period shall not be paid
to the holder entitled to receive the redemption price on the redemption date,
but rather shall be paid to the holder of record of the redeemed shares on such
Dividend Record Date relating to the Dividend Payment Date as provided in
Section 3 above.
(b) No Sinking Fund. The Designated Preferred Stock will not be subject
to any mandatory redemption, sinking fund or other similar provisions. Holders
of Designated Preferred Stock will have no right to require redemption or
repurchase of any shares of Designated Preferred Stock.
(c) Notice of Redemption. Notice of every redemption of shares of
Designated Preferred Stock shall be given by first class mail, postage prepaid,
addressed to the holders of record of the shares to be redeemed at their
respective last addresses appearing on the books of the Corporation. Such
mailing shall be at least 30 days and not more than 60 days before the date
fixed for redemption. Any notice mailed as provided in this Subsection shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice, but failure duly to give such notice by mail, or any
defect in such notice or in the mailing thereof, to any holder of shares of
Designated Preferred Stock designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of Designated
Preferred Stock. Notwithstanding the foregoing, if shares of Designated
Preferred Stock are issued in book-entry form through The Depository Trust
Company or any other similar facility, notice of redemption may be given to the
holders of Designated Preferred Stock at such time and in any manner permitted
by such facility. Each notice of redemption given to a holder shall state: (1)
the redemption date; (2) the number of shares of Designated Preferred Stock to
be redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the
redemption price; and (4) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price.
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(d) Partial Redemption. In case of any redemption of part of the shares
of Designated Preferred Stock at the time outstanding, the shares to be redeemed
shall be selected either pro rata or in such other manner as the Board of
Directors or a duly authorized committee thereof may determine to be fair and
equitable. Subject to the provisions hereof, the Board of Directors or a duly
authorized committee thereof shall have full power and authority to prescribe
the terms and conditions upon which shares of Designated Preferred Stock shall
be redeemed from time to time. If fewer than all the shares represented by any
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly
given and if on or before the redemption date specified in the notice all funds
necessary for the redemption have been deposited by the Corporation, in trust
for the pro rata benefit of the holders of the shares called for redemption,
with a bank or trust company doing business in the Borough of Manhattan, The
City of New York, and having a capital and surplus of at least $500 million and
selected by the Board of Directors, so as to be and continue to be available
solely therefor, then, notwithstanding that any certificate for any share so
called for redemption has not been surrendered for cancellation, on and after
the redemption date dividends shall cease to accrue on all shares so called for
redemption, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable on such redemption from such bank or trust
company, without interest. Any funds unclaimed at the end of three years from
the redemption date shall, to the extent permitted by law, be released to the
Corporation, after which time the holders of the shares so called for redemption
shall look only to the Corporation for payment of the redemption price of such
shares.
(f) Status of Redeemed Shares. Shares of Designated Preferred Stock
that are redeemed, repurchased or otherwise acquired by the Corporation shall
revert to authorized but unissued shares of Preferred Stock (provided that any
such cancelled shares of Designated Preferred Stock may be reissued only as
shares of any series of Preferred Stock other than Designated Preferred Stock).
Section 6. Conversion. Holders of Designated Preferred Stock shares
shall have no right to exchange or convert such shares into any other
securities.
Section 7. Voting Rights.
(a) General. The holders of Designated Preferred Stock shall not have
any voting rights except as set forth below or as otherwise from time to time
required by law.
(b) Preferred Stock Directors. Whenever, at any time or times,
dividends payable on the shares of Designated Preferred Stock have not been paid
for an aggregate of six quarterly Dividend Periods or more, whether or not
consecutive, the authorized number of directors of the Corporation shall
automatically be increased by two and the holders of the Designated Preferred
Stock shall have the right, with holders of shares of any one or more other
classes or series of Voting Parity Stock outstanding at the time, voting
together as a class, to elect two directors (hereinafter the "Preferred
Directors" and each a "Preferred Director") to fill such newly created
directorships at the Corporation's next annual meeting of stockholders (or at a
special meeting called for that purpose prior to such next annual meeting) and
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at each subsequent annual meeting of stockholders until all accrued and unpaid
dividends for all past Dividend Periods, including the latest completed Dividend
Period (including, if applicable as provided in Section 3(a) above, dividends on
such amount), on all outstanding shares of Designated Preferred Stock have been
declared and paid in full at which time such right shall terminate with respect
to the Designated Preferred Stock, except as herein or by law expressly
provided, subject to revesting in the event of each and every subsequent default
of the character above mentioned; provided that it shall be a qualification for
election for any Preferred Director that the election of such Preferred Director
shall not cause the Corporation to violate any corporate governance requirements
of any securities exchange or other trading facility on which securities of the
Corporation may then be listed or traded that listed or traded companies must
have a majority of independent directors. Upon any termination of the right of
the holders of shares of Designated Preferred Stock and Voting Parity Stock as a
class to vote for directors as provided above, the Preferred Directors shall
cease to be qualified as directors, the term of office of all Preferred
Directors then in office shall terminate immediately and the authorized number
of directors shall be reduced by the number of Preferred Directors elected
pursuant hereto. Any Preferred Director may be removed at any time, with or
without cause, and any vacancy created thereby may be filled, only by the
affirmative vote of the holders a majority of the shares of Designated Preferred
Stock at the time outstanding voting separately as a class together with the
holders of shares of Voting Parity Stock, to the extent the voting rights of
such holders described above are then exercisable. If the office of any
Preferred Director becomes vacant for any reason other than removal from office
as aforesaid, the remaining Preferred Director may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy occurred.
(c) Class Voting Rights as to Particular Matters. So long as any shares
of Designated Preferred Stock are outstanding, in addition to any other vote or
consent of stockholders required by law or by the Charter, the vote or consent
of the holders of at least 66 2/3% of the shares of Designated Preferred Stock
at the time outstanding, voting as a separate class, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration
of the Certificate of Designations for the Designated Preferred Stock
or the Charter to authorize or create or increase the authorized amount
of, or any issuance of, any shares of, or any securities convertible
into or exchangeable or exercisable for shares of, any class or series
of capital stock of the Corporation ranking senior to Designated
Preferred Stock with respect to either or both the payment of dividends
and/or the distribution of assets on any liquidation, dissolution or
winding up of the Corporation;
(ii) Amendment of Designated Preferred Stock. Any amendment, alteration
or repeal of any provision of the Certificate of Designations for the
Designated Preferred Stock or the Charter (including, unless no vote on
such merger or consolidation is required by Section 7(c)(iii) below,
any amendment, alteration or repeal by means of a merger, consolidation
or otherwise) so as to adversely affect the rights, preferences,
privileges or voting powers of the Designated Preferred Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations.
Any consummation of a binding share exchange or reclassification
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involving the Designated Preferred Stock, or of a merger or
consolidation of the Corporation with another corporation or other
entity, unless in each case (x) the shares of Designated Preferred
Stock remain outstanding or, in the case of any such merger or
consolidation with respect to which the Corporation is not the
surviving or resulting entity, are converted into or exchanged for
preference securities of the surviving or resulting entity or its
ultimate parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and
restrictions thereof, taken as a whole, as are not materially less
favorable to the holders thereof than the rights, preferences,
privileges and voting powers, and limitations and restrictions thereof,
of Designated Preferred Stock immediately prior to such consummation,
taken as a whole;
provided, however, that for all purposes of this Section 7(c), any increase in
the amount of the authorized Preferred Stock, including any increase in the
authorized amount of Designated Preferred Stock necessary to satisfy preemptive
or similar rights granted by the Corporation to other persons prior to the
Signing Date, or the creation and issuance, or an increase in the authorized or
issued amount, whether pursuant to preemptive or similar rights or otherwise, of
any other series of Preferred Stock, or any securities convertible into or
exchangeable or exercisable for any other series of Preferred Stock, ranking
equally with and/or junior to Designated Preferred Stock with respect to the
payment of dividends (whether such dividends are cumulative or non-cumulative)
and the distribution of assets upon liquidation, dissolution or winding up of
the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and shall not require the affirmative vote or
consent of, the holders of outstanding shares of the Designated Preferred Stock.
(d) Changes after Provision for Redemption. No vote or consent of the
holders of Designated Preferred Stock shall be required pursuant to Section 7(c)
above if, at or prior to the time when any such vote or consent would otherwise
be required pursuant to such Section, all outstanding shares of the Designated
Preferred Stock shall have been redeemed, or shall have been called for
redemption upon proper notice and sufficient funds shall have been deposited in
trust for such redemption, in each case pursuant to Section 5 above.
(e) Procedures for Voting and Consents. The rules and procedures for
calling and conducting any meeting of the holders of Designated Preferred Stock
(including, without limitation, the fixing of a record date in connection
therewith), the solicitation and use of proxies at such a meeting, the obtaining
of written consents and any other aspect or matter with regard to such a meeting
or such consents shall be governed by any rules of the Board of Directors or any
duly authorized committee of the Board of Directors, in its discretion, may
adopt from time to time, which rules and procedures shall conform to the
requirements of the Charter, the Bylaws, and applicable law and the rules of any
national securities exchange or other trading facility on which Designated
Preferred Stock is listed or traded at the time.
Section 8. Record Holders. To the fullest extent permitted by
applicable law, the Corporation and the transfer agent for Designated Preferred
Stock may deem and treat the record holder of any share of Designated Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor such transfer agent shall be affected by any notice to the
contrary.
Section 9. Notices. All notices or communications in respect of
Designated Preferred Stock shall be sufficiently given if given in writing and
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delivered in person or by first class mail, postage prepaid, or if given in such
other manner as may be permitted in this Certificate of Designations, in the
Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if shares
of Designated Preferred Stock are issued in book-entry form through The
Depository Trust Company or any similar facility, such notices may be given to
the holders of Designated Preferred Stock in any manner permitted by such
facility.
Section 10. No Preemptive Rights. No share of Designated Preferred
Stock shall have any rights of preemption whatsoever as to any securities of the
Corporation, or any warrants, rights or options issued or granted with respect
thereto, regardless of how such securities, or such warrants, rights or options,
may be designated, issued or granted.
Section 11. Replacement Certificates. The Corporation shall replace any
mutilated certificate at the holder's expense upon surrender of that certificate
to the Corporation. The Corporation shall replace certificates that become
destroyed, stolen or lost at the holder's expense upon delivery to the
Corporation of reasonably satisfactory evidence that the certificate has been
destroyed, stolen or lost, together with any indemnity that may be reasonably
required by the Corporation.
Section 12. Other Rights. The shares of Designated Preferred Stock
shall not have any rights, preferences, privileges or voting powers or relative,
participating, optional or other special rights, or qualifications, limitations
or restrictions thereof, other than as set forth herein or in the Charter or as
provided by applicable law.
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