CERTIFICATE OF DETERMINATION
OF
RIGHTS, PREFERENCE AND PRIVILEGES
OF
SERIES A PREFERRED STOCK
OF
PACIFIC CAPITAL BANCORP
David W. Spainhour and Donald J. Smith hereby certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of Pacific Capital Bancorp, a California corporation.
2. Pursuant to authority given by said corporation's Articles of
Incorporation, the Board of Directors of said corporation has duly adopted the
following recitals and resolutions:
WHEREAS, the Articles of Incorporation of this corporation provide for
a class of shares known as Preferred Stock, issuable from time to time
in one or more series; and
WHEREAS, the Board of Directors of this corporation is authorized to
determine or alter the rights, preferences, privileges and restrictions
granted to or imposed upon any wholly unissued series of Preferred
Stock, to fix the number of shares constituting any such series, and to
determine the designation thereof, or any of them; and
WHEREAS, this corporation has not issued a series of Preferred Stock,
and the Board of Directors of this corporation desires, pursuant to its
authority as aforesaid, to determine and fix the rights, preferences,
privileges and restrictions relating to a series of said Preferred
Stock and the number of shares constituting the designation of said
series;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors hereby
fixes and determines the designation of, the number of shares
constituting, and the rights, preferences, privileges and restrictions
relating to, said series of Preferred Stock as follows:
1. Designation of Preferred Shares. The corporation shall have
one series of Preferred Stock which shall be designated "Series A
Preferred Stock" (the "Series A Preferred Stock"). (The Series A
Preferred Stock is hereinafter sometimes referred to as the "Preferred
Stock".)
2. Number of Preferred Shares. The number of shares
constituting the Series A Preferred Stock shall be Sixty Thousand
(60,000). Such number of shares may be increased or decreased by
resolution of the Board; provided that no decrease shall reduce the
number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any
outstanding securities issued by the corporation convertible into
Series A Preferred Stock.
3. Dividends and Distributions. Subject to the rights of the
holders of any shares of any series of Preferred Stock (or any similar
stock) ranking prior and superior to the Series A Preferred Stock with
respect to dividends, the holders of the Series A Preferred Stock shall
only be entitled, when and if declared by the Board of Directors of the
corporation, to dividends out of the retained earnings of the
corporation; provided that no dividend or distribution may be declared
or paid on any shares of Common Stock or any shares of Series A
Preferred Stock unless at the same time an equivalent dividend or
distribution is declared or paid on all outstanding shares of Common
Stock and Series A Preferred Stock. Subject to the provision for
adjustment hereinafter set forth, the amount of the dividend or other
distribution payable with respect to the Series A Preferred Stock shall
be payable at the rate per share of Series A Preferred Stock equal to
1,000 times the aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on
the Common Stock. In the event the corporation shall at any time or
from time to time after December 14, 1999 (the "Rights Dividend
Declaration Date") declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision, combination
or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
under the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. The right to dividends on
shares of the Series A Preferred Stock shall not be cumulative, and no
right shall accrue to holders of shares of Common Stock or Series A
Preferred Stock by reason of the fact that dividends on said shares are
not or have not been declared in any period.
4. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights.
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred Stock shall
entitle the holder thereof to 1,000 votes on all matters submitted to a
vote of the stockholders of the corporation. In the event the
corporation shall at any time or from time to time after the Rights
Dividend Declaration Date declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in any
Certificate of Determination creating a series of Preferred Stock or
any similar stock, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any other
capital stock of the corporation having general voting rights shall
vote together as one class on all matters submitted to a vote of
stockholders of the corporation.
(c) Except as set forth herein, or as otherwise
provided by law, holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required (except
to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued
as part of a new series of Preferred Stock subject to the conditions
and restrictions on issuance set forth in any Certificate of
Determination creating a series of Preferred Stock or any similar stock
or as otherwise required by law.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the corporation, no distribution shall be
made to the holders of shares of Common Stock or other stock ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have received an
amount equal to $1,000 per share of Series A Preferred Stock, plus an
amount equal to accrued and unpaid dividends and distributions thereon
to the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders of
shares of Series A Preferred Stock unless, prior thereto, the holders
of shares of Common Stock shall have received an amount equal to $1.00
per share of Common Stock (the "Common Amount"). Following the payment
of the full amount of the Series A Liquidation Preference and the
Common Amount in respect of all outstanding shares of Series A
Preferred Stock and Common Stock, respectively, holders of Series A
Preferred Stock and holders of shares of Common Stock shall receive
their ratable and proportionate share of the remaining assets to be
distributed on liquidation of the corporation in the ratio of 1,000 to
1 with respect to such Series A Preferred Stock and Common Stock, on a
per share basis, respectively.
(b) In the event that there are not sufficient assets
available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with the Series A
Preferred Stock, then such remaining assets shall be distributed
ratably to the holders of such Series A Preferred Stock and parity
shares in proportion to their respective liquidation preferences. In
the event, that, after payment in full of the Series A Liquidation
Preference, there are not sufficient remaining assets available to
permit payment in full of the Common Amount, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(c) In the event the corporation shall at any time or
from time to time after the Rights Dividend Declaration Date declare or
pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then, in each such case,
(i) the Series A Liquidation Preference in effect immediately prior to
such event shall be adjusted by multiplying such Series A Liquidation
Preference by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event and (ii) the Common Amount
in effect immediately prior to such event shall be adjusted by
multiplying such Common Amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
7. Consolidation, Merger, etc. In case the corporation shall
enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then in any
such case the shares of Series A Preferred Stock shall at the same time
be similarly exchanged or changed in an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
corporation shall at any time or from time to time after the Rights
Dividend Declaration Date declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
9. Rank. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to
all other series of the corporation's Preferred Stock, unless the terms
of any such series shall provide otherwise.
10. Amendment. This Certificate of Determination shall not be
amended in any manner which would materially alter or change the
rights, preferences and privileges of the Series A Preferred Stock so
as to affect them adversely without the affirmative vote of the holders
of at least two-thirds (2/3) of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
3. The authorized number of shares of Preferred Stock of the
corporation is 1,000,000. No shares of any series of Preferred Stock are issued
and outstanding. The authorized number of shares of Series A Preferred Stock of
the corporation is 60,000, and no shares of Series A Preferred Stock are issued
and outstanding. The authorized number of shares of Common Stock of the
corporation is 60,000,000, of which 24,521,095 shares are issued and
outstanding.
IN WITNESS WHEREOF, the undersigned has hereunto set their hands as of
December 15, 1999.
------------------------------------
David W. Spainhour, President
------------------------------------
J. Donald Smith, Secretary
The undersigned, David W. Spainhour and Donald J. Smith, the President
and Secretary, respectively, of Pacific Capital Bancorp, a California
corporation, declares under penalty of perjury that the matters set out in the
foregoing Certificate are true of his own knowledge.
Executed at Santa Barbara, California on December 15, 1999.
------------------------------------
David W. Spainhour
------------------------------------
J. Donald Smith