Exhibit (3)(f)
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
CITY NATIONAL BANCSHARES CORPORATION
TO: THE DEPARTMENT OF TREASURY
STATE OF NEW JERSEY
Pursuant to the provision of Section 14A:7-2(2) of the New Jersey Business
Corporation Act, the undersigned corporation executes the following Certificate
of Amendment to its Certificate of Incorporation.
1. The name of the corporation is City National Bancshares Corporation.
2. The following resolution, establishing and designating a series of
shares and fixing and determining the relative rights and preferences
thereof was duly adopted by the Board of Directors of the corporation
on the 22nd day of September 2005, pursuant to authority vested in it
by the Certificate of Incorporation:
RESOLVED, pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Certificate of Incorporation, the
Board of Directors does hereby classify 7,000 shares of preferred
stock of the Corporation as a class designated MultiMode Series F
Non-cumulative Redeemable Preferred Stock, and it is further
RESOLVED, the terms of such MultiMode Series F Non-cumulative
Redeemable Preferred Stock, including the preferences and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions for redemption, all as set by
the Board of Directors of the Corporation, is set forth in the
attached Certificate of Designation establishing the MultiMode Series
F Non-cumulative Redeemable Preferred Stock.
3. The resolution was adopted by the Board of Directors at a meeting duly
called and held on September 22, 2005, at which a quorum was present
throughout.
4. The Certificate of Incorporation of the corporation is amended so that
the designation and number of shares of each class and series acted
upon in the resolution, and the relative rights, preferences and
limitations of each such class and series are as stated in the
resolution.
City National Bancshares Corporation
By: /s/EDWARD R. WRIGHT Date: September 27, 2005
---------------------------------
Name: Edward R. Wright
Title: Senior Vice President and CFO
CITY NATIONAL BANCSHARES CORPORATION
CERTIFICATE OF DESIGNATION
MULTIMODE SERIES F NONCUMULATIVE REDEEMABLE PREFERRED STOCK
There is hereby established a new series of preferred stock of City
National Bancshares Corporation, a New Jersey Corporation (the "Corporation"),
to which the following preferences, rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and other
terms and conditions shall apply:
DESIGNATION AND NUMBER. A SERIES OF PREFERRED STOCK, DESIGNATED AS THE
"MULTIMODE SERIES F NONCUMULATIVE REDEEMABLE PREFERRED STOCK" (THE "SERIES F
PREFERRED STOCK"), IS HEREBY ESTABLISHED. THE NUMBER OF SHARES OF SERIES F
PREFERRED STOCK SHALL CONSIST INITIALLY OF 7,000 SHARES (THE "SHARES").
RANK. THE SERIES F PREFERRED STOCK WILL, WITH RESPECT TO DIVIDEND RIGHTS AND
RIGHTS UPON LIQUIDATION (AS DEFINED IN SECTION 4(A)) OF THE CORPORATION, RANK
(A) SENIOR TO ALL CLASSES OR SERIES OF THE CORPORATION'S COMMON STOCK AND TO ALL
EQUITY SECURITIES ISSUED BY THE CORPORATION THE TERMS OF WHICH PROVIDE THAT SUCH
EQUITY SECURITIES SHALL RANK JUNIOR TO THE SERIES F PREFERRED STOCK, (B) ON
PARITY WITH ALL EQUITY SECURITIES ISSUED BY THE CORPORATION OTHER THAN THOSE
EQUITY SECURITIES REFERRED TO IN CLAUSE (A) OR (C) IN THIS SECTION AND (C)
JUNIOR TO ALL EQUITY SECURITIES ISSUED BY THE CORPORATION THAT RANK SENIOR TO
THE SERIES F PREFERRED STOCK IN ACCORDANCE WITH SECTION 6(E). THE TERM "EQUITY
SECURITIES" SHALL NOT INCLUDE CONVERTIBLE DEBT SECURITIES.
DIVIDENDS. HOLDERS OF RECORD OF SERIES F PREFERRED STOCK SHALL BE ENTITLED TO
RECEIVE, WHEN, AS AND IF DECLARED BY THE BOARD OF DIRECTORS OF THE CORPORATION
(THE "BOARD OF DIRECTORS"), OUT OF FUNDS LEGALLY AVAILABLE THEREFOR,
NONCUMULATIVE CASH DIVIDENDS AS DETERMINED IN THE FOLLOWING MANNER:
(i) from and including September 29, 2005 to, but excluding,
December 1, 2010, the dividend rate applicable to all outstanding Shares
will be equal to 8.5325% per annum of the liquidation preference of such
Shares; and
(ii) on December 1, 2010 and on the Dividend Payment Date occurring
in December every five years thereafter until redemption (each such date,
an "Interest Rate Mode Reset Date"), the dividend rate applicable to all
outstanding Shares for the period from, and including, such Interest Rate
Mode Reset Date to, but excluding, the next succeeding Interest Rate Mode
Reset Date or, if applicable, the Redemption Date (as defined in Section
5(a)) (each such period, a "MultiMode Period") will be reset, at the
election of the Corporation, at a rate equivalent to either (A) a floating
rate per annum of the liquidation preference of such Shares equal to LIBOR
(as defined below), determined as specified below, for each Floating Rate
Dividend Period (as defined below) in such MultiMode Period (each such
MultiMode Period as to which clause (A) applies, a "Floating Rate
MultiMode Period") or (B) a fixed rate per annum of the liquidation
preference of such Shares equal to the Swap Rate (as defined below),
determined as specified below, for such MultiMode Period (each such
MultiMode Period as
to which clause (B) applies, a "Fixed Rate MultiMode Period"), plus, in
the case of clause (A) and clause (B), a spread equal to 3.97%. The
Corporation shall be required to make such election by delivering written
notice to the Calculation Agent and to all holders of record of Series F
Preferred Stock not less than 30 days prior to each Interest Rate Mode
Reset Date. Absent a valid election by the Corporation, the dividend rate
applicable to all outstanding shares for the related MultiMode Period
shall be determined in accordance with clause (A) above.
DIVIDENDS IN RESPECT OF THE SHARES SHALL BE PAYABLE QUARTERLY IN ARREARS ON
MARCH 1, JUNE 1, SEPTEMBER 1 AND DECEMBER 1 OF EACH YEAR (EACH, A "DIVIDEND
PAYMENT DATE"), COMMENCING DECEMBER 1, 2005. DIVIDENDS SHALL BE COMPUTED: (I)
DURING ANY FIXED RATE DIVIDEND PERIOD (AS DEFINED BELOW), ON THE BASIS OF A
360-DAY YEAR CONSISTING OF TWELVE 30-DAY MONTHS AND (II) DURING ANY FLOATING
RATE DIVIDEND PERIOD, ON THE BASIS OF A 360-DAY YEAR AND THE ACTUAL NUMBER OF
DAYS ELAPSED IN SUCH FLOATING RATE DIVIDEND PERIOD.
Notwithstanding anything to the contrary contained herein, during
any Floating Rate Dividend Period, if any Dividend Payment Date other than a
Redemption Date falls on a day that is not a Business Day (as defined below),
then any dividends payable will be paid on, and such Dividend Payment Date will
be moved to, the next succeeding Business Day, and additional dividends will
accrue for each day that such payment is delayed as a result thereof. During any
Fixed Rate Dividend Period, if any Dividend Payment Date falls on a day that is
not a Business Day, then the dividends payable on such date will be paid on the
next succeeding Business Day, and no additional dividends will accrue in respect
of such payment made on such next succeeding Business Day.
Dividends declared in respect of a Dividend Payment Date shall be
payable to the holders of record of Series F Preferred Stock appearing in the
stock records of the Corporation at the close of business on the applicable
record date (whether or not a Business Day), which shall be a date designated by
the Board of Directors for the payment of dividends that is not less than 10 nor
more than 60 calendar days immediately preceding such Dividend Payment Date
(each, a "Dividend Record Date").
"Business Day" means any day other than a Saturday, Sunday or other
day on which banking institutions in The City of New York or Trenton are
permitted or required by law, executive order or regulation to close.
"Dividend Period" means (i) the period from, and including, the date
of original issuance of the Shares to, but excluding, the initial Dividend
Payment Date and (ii) thereafter, the period from, and including, the first day
following the end of the preceding Dividend Period to, but excluding, the
applicable Dividend Payment Date or, in the case of the last Dividend Period,
the related Redemption Date.
"Fixed Rate Dividend Period" means each Dividend Period in (i) the
period from, and including, the date of original issuance of the Shares to, but
excluding, December 1, 2010 and (ii) a Fixed Rate MultiMode Period.
"Floating Rate Dividend Period" means each Dividend Period in a
Floating Rate MultiMode Period.
"LIBOR" for any applicable Floating Rate Dividend Period shall be
determined by Wilmington Trust Company, as calculation agent (including any
successor calculation agent, the "Calculation Agent"), in accordance with the
following provisions:
(i) On the second LIBOR Business Day (provided, that on such day
commercial banks are open for business (including dealings in foreign
currency deposits) in London (a "LIBOR Banking Day"), and otherwise the
next preceding LIBOR Business Day that is also a LIBOR Banking Day) prior
to the commencement of such Floating Rate Dividend Period (each such day,
a "LIBOR Determination Date"), LIBOR shall equal the rate, as obtained by
the Calculation Agent, for three-month U.S. Dollar deposits in Europe,
which appears on Telerate (as defined in the International Swaps and
Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions) page 3750 or such other page as may replace such page 3750,
as of 11:00 a.m. (London time) on such LIBOR Determination Date, as
reported by Bloomberg Financial Markets Commodities News or any successor
service ("Telerate Page 3750"). "LIBOR Business Day" means any day that is
not a Saturday, Sunday or other day on which commercial banking
institutions in The City of New York or Wilmington, Delaware are
authorized or obligated by law, executive order or regulation to be
closed. If such rate is superseded on Telerate Page 3750 by a corrected
rate before 12:00 noon (London time) on such LIBOR Determination Date, the
corrected rate as so substituted will be LIBOR for such LIBOR
Determination Date.
(ii) If, on such LIBOR Determination Date, such rate does not appear
on Telerate Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks to
leading banks in the London interbank market for three-month U.S. Dollar
deposits in Europe (in an amount determined by the Calculation Agent) by
reference to requests for quotations as of approximately 11:00 a.m.
(London time) on such LIBOR Determination Date made by the Calculation
Agent to the Reference Banks. If, on such LIBOR Determination Date, at
least two of the Reference Banks provide such quotations, LIBOR shall
equal the arithmetic mean of such quotations. If, on such LIBOR
Determination Date, only one or none of the Reference Banks provide such a
quotation, LIBOR shall be deemed to be the arithmetic mean of the offered
quotations that at least two leading banks in The City of New York (as
selected by the Calculation Agent) are quoting on such LIBOR Determination
Date for three-month U.S. Dollar deposits in Europe at approximately 11:00
a.m. (London time) (in an amount determined by the Calculation Agent). As
used herein, "Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent.
(iii) If the Calculation Agent is required but is unable to
determine a rate in accordance with at least one of the procedures
provided above, LIBOR for such Floating Rate Dividend Period shall be
LIBOR in effect for the immediately preceding Floating Rate Dividend
Period (or, if the immediately preceding Dividend Period is not a Dividend
Period within the applicable Floating Rate MultiMode Period, the dividend
rate applicable to such Dividend Period), which will be replaced by the
applicable LIBOR on the first day on which it can be determined as
described above in clause (i) or clause (ii) (in that order of priority).
"Swap Rate" for each Dividend Period in a Fixed Rate MultiMode
Period shall be determined by the Calculation Agent, in accordance with the
following provisions:
(i) On the second Business Day prior to the commencement of such
Fixed Rate MultiMode Period (each such day, a "Swap Determination Date"),
the Swap Rate shall be the rate equal to (in the following order of
priority):
(A) the "ask" rate for five-year U.S. Dollar swaps, expressed
as a percentage, which appears on the Bloomberg Screen IRSB 18 Page
(as defined below) at 11:30 a.m., New York City time, available on
such Swap Determination Date;
(B) if the "ask" rate for five-year U.S. Dollar swaps
described in clause (A) does not so appear on the Bloomberg Screen
IRSB 18 Page on such Swap Determination Date, the Swap Rate will be
the mid-market rate for five-year U.S. Dollar swaps, expressed as a
percentage, which appears on the Telerate Page 19901 (as defined
below) at 11:30 a.m., New York City time, on such Swap Determination
Date;
(C) if the mid-market rate for five-year U.S. Dollar swaps
described in clause (B) does not so appear on the Telerate Page
19901 on such Swap Determination Date, the Swap Rate will be a
percentage determined by the Calculation Agent, based on the
arithmetic mean of the mid-market rate for five-year U.S. Dollar
Swap quotations provided by five leading primary securities dealers
in The City of New York selected by the Calculation Agent, at
approximately 3:00 p.m., New York City time, on such Swap
Determination Date; if four or five of such dealers are quoting as
described in this clause (C), the Swap Rate will be the arithmetic
mean of such quotations, without regard to the quotations having the
highest and lowest values; and if exactly three such quotations are
provided, the Swap Rate will be the quotation remaining after
disregarding the highest and lowest quotations; it being understood
that for this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded; or
(D) if fewer than three dealers selected by the Calculation
Agent are quoting as described in clause (C), the Swap Rate will be
the Swap Rate determined on the immediately preceding Swap
Determination Date (or, if the immediately preceding Dividend Period
is not a Dividend Period within the applicable Fixed Rate MultiMode
Period, the dividend rate applicable to such Dividend Period), which
will be replaced by the applicable Swap Rate on the first day on
which it can be determined as described above in clause (A), clause
(B) or clause (C) (in that order of priority).
"Bloomberg Screen IRSB 18 Page" means page IRSB 18 (or any other
page as may replace such page) on the display of the Bloomberg service (or any
successor service).
"Telerate Page 19901" means page 19901 (or any other page as may
replace such page) on the display of Moneyline Telerate Inc. (or any successor
service).
All percentages resulting from any calculations on the Shares will
be rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward).
On each LIBOR Determination Date and on each Swap Determination
Date, the Calculation Agent shall notify, in writing, the Corporation of the
applicable dividend rate that applies to the related Dividend Period. The
Calculation Agent shall, upon the request of a holder of any Shares, inform such
holder of the dividend rate that applies to the related Dividend Period. All
calculations made by the Calculation Agent in the absence of manifest error
shall be conclusive for all purposes and binding on the Corporation and the
holders of the Shares.
The Corporation covenants that, for so long as any of the Shares
remain outstanding, there shall at all times be a Calculation Agent engaged to
perform the tasks of the Calculation Agent specified hereunder. In the event
that the Calculation Agent resigns or is removed as Calculation Agent for the
Shares, the Corporation shall appoint another leading bank that is knowledgeable
about the London interbank and U.S. dollar swap markets to act as such in its
place.
NO DIVIDEND ON THE SERIES F PREFERRED STOCK SHALL BE AUTHORIZED OR DECLARED OR
PAID OR SET APART FOR PAYMENT BY THE CORPORATION IF AT SUCH TIME (I) THE TERMS
AND PROVISIONS OF ANY AGREEMENT OF THE CORPORATION, INCLUDING ANY AGREEMENT
RELATING TO ITS INDEBTEDNESS, PROHIBITS SUCH AUTHORIZATION, DECLARATION, PAYMENT
OR SETTING APART FOR PAYMENT OR PROVIDES THAT SUCH AUTHORIZATION, DECLARATION,
PAYMENT OR SETTING APART FOR PAYMENT WOULD CONSTITUTE A BREACH OR DEFAULT
THEREUNDER OR (II) SUCH AUTHORIZATION, DECLARATION, PAYMENT OR SETTING APART FOR
PAYMENT SHALL BE RESTRICTED OR PROHIBITED BY LAW.
(b) EXCEPT AS OTHERWISE SPECIFIED HEREIN, THE SHARES SHALL NOT BE
ENTITLED TO ANY DIVIDENDS IN EXCESS OF THE FULL NONCUMULATIVE DIVIDENDS DECLARED
THEREON. IN ADDITION, NO INTEREST, OR SUM OF MONEY IN LIEU OF INTEREST, SHALL BE
PAYABLE IN RESPECT OF ANY DIVIDEND ON THE SERIES F PREFERRED STOCK THAT MAY BE
IN ARREARS.
EXCEPT AS PROVIDED IN THE NEXT SUCCEEDING SENTENCE, IF ANY SHARES OF SERIES F
PREFERRED STOCK ARE OUTSTANDING, NO DIVIDENDS OR OTHER DISTRIBUTIONS SHALL BE
DECLARED OR PAID OR SET APART FOR PAYMENT, AND NO OTHER DIVIDEND OR DISTRIBUTION
SHALL BE DECLARED OR MADE UPON, THE CORPORATION'S COMMON STOCK OR ANY OTHER
EQUITY SECURITIES RANKING, AS TO DIVIDENDS OR UPON LIQUIDATION, ON PARITY WITH
OR JUNIOR TO THE SERIES F PREFERRED STOCK UNLESS FULL DIVIDENDS ON THE SERIES F
PREFERRED STOCK HAVE BEEN OR CONTEMPORANEOUSLY ARE DECLARED AND PAID OR DECLARED
AND A SUM SUFFICIENT FOR THE PAYMENT THEREOF SET APART FOR THREE CONSECUTIVE
DIVIDEND PERIODS, THE MOST RECENT OF WHICH IS THE THEN CURRENT DIVIDEND PERIOD,
OR, IF THERE HAVE BEEN FEWER THAN THREE DIVIDEND PERIODS SINCE THE DATE OF
ORIGINAL ISSUANCE OF THE SHARES, FOR EACH DIVIDEND PERIOD COMMENCING ON OR AFTER
SUCH ORIGINAL ISSUANCE DATE. WHEN DIVIDENDS ARE NOT PAID IN FULL (OR A SUM
SUFFICIENT FOR SUCH FULL PAYMENT IS NOT SO SET APART) UPON THE SERIES F
PREFERRED STOCK AND ALL OTHER EQUITY SECURITIES RANKING, AS TO DIVIDENDS, ON A
PARITY WITH THE SERIES F PREFERRED STOCK, ALL
DIVIDENDS DECLARED UPON THE SERIES F PREFERRED STOCK AND ANY OTHER EQUITY
SECURITIES RANKING, AS TO DIVIDENDS, ON A PARITY WITH THE SERIES F PREFERRED
STOCK SHALL BE AUTHORIZED AND DECLARED BY THE CORPORATION ON A PRO RATA BASIS SO
THAT THE AMOUNT OF DIVIDENDS PER SHARE OF SERIES F PREFERRED STOCK AND EACH SUCH
OTHER EQUITY SECURITY SHALL IN ALL CASES BEAR TO EACH OTHER THE SAME RATIO THAT
ACCRUED BUT UNPAID DIVIDENDS PER SHARE OF SERIES F PREFERRED STOCK FOR THE THEN
CURRENT DIVIDEND PERIOD AND EACH PRIOR DIVIDEND PERIOD, IF ANY, AS TO WHICH
DIVIDENDS HAVE BEEN DECLARED AND EACH SUCH OTHER EQUITY SECURITY (WHICH SHALL
NOT INCLUDE ANY PREVIOUSLY UNDECLARED AND UNPAID DIVIDENDS FOR PRIOR PERIODS IF
SUCH OTHER EQUITY SECURITY IS NOT ENTITLED TO CUMULATIVE DIVIDENDS) BEAR TO EACH
OTHER. IF ANY SHARES OF SERIES F PREFERRED STOCK ARE OUTSTANDING, NONE OF THE
CORPORATION'S COMMON STOCK OR OTHER EQUITY SECURITIES RANKING, AS TO DIVIDENDS
OR UPON LIQUIDATION, ON PARITY WITH OR JUNIOR TO THE SERIES F PREFERRED STOCK
SHALL BE REDEEMED, PURCHASED OR OTHERWISE ACQUIRED, DIRECTLY OR INDIRECTLY, FOR
ANY CONSIDERATION (OR ANY MONIES BE PAID TO OR MADE AVAILABLE FOR A SINKING FUND
FOR THE REDEMPTION THEREOF) BY THE CORPORATION (EXCEPT BY CONVERSION INTO OR
EXCHANGE FOR THE CORPORATION'S COMMON STOCK OR OTHER EQUITY SECURITIES RANKING,
AS TO DIVIDENDS AND UPON LIQUIDATION, JUNIOR TO THE SERIES F PREFERRED STOCK)
UNLESS FULL DIVIDENDS ON THE SERIES F PREFERRED STOCK HAVE BEEN OR
CONTEMPORANEOUSLY ARE DECLARED AND PAID OR DECLARED AND A SUM SUFFICIENT FOR THE
PAYMENT THEREOF SET APART FOR THREE CONSECUTIVE DIVIDEND PERIODS, THE MOST
RECENT OF WHICH IS THE THEN CURRENT DIVIDEND PERIOD OR, IF THERE HAVE BEEN FEWER
THAN THREE DIVIDEND PERIODS SINCE THE DATE OF ORIGINAL ISSUANCE OF THE SHARES,
FOR EACH DIVIDEND PERIOD COMMENCING ON OR AFTER SUCH ORIGINAL ISSUANCE DATE.
LIQUIDATION.
IN THE EVENT OF ANY VOLUNTARY OR INVOLUNTARY LIQUIDATION, DISSOLUTION OR WINDING
UP OF THE CORPORATION (COLLECTIVELY, A "LIQUIDATION"), HOLDERS OF RECORD OF
SERIES F PREFERRED STOCK THEN OUTSTANDING SHALL BE ENTITLED TO RECEIVE OUT OF
THE ASSETS OF THE CORPORATION LEGALLY AVAILABLE FOR DISTRIBUTION TO STOCKHOLDERS
(AFTER PAYMENT OR PROVISION FOR PAYMENT OF ALL DEBTS AND OTHER LIABILITIES OF
THE CORPORATION AND THE LIQUIDATION PREFERENCE OF ANY EQUITY SECURITIES OF THE
CORPORATION RANKING, AS TO LIQUIDATION, SENIOR TO THE SERIES F PREFERRED STOCK)
AN AMOUNT EQUAL TO THE LIQUIDATION PREFERENCE OF $1,000.00 PER SHARE, PLUS (I)
ALL ACCRUED BUT UNPAID DIVIDENDS FOR THE THEN CURRENT DIVIDEND PERIOD (WHETHER
OR NOT EARNED OR DECLARED) UNTIL THE DATE OF PAYMENT AND (II) ALL ACCRUED BUT
UNPAID DIVIDENDS THAT HAVE BEEN DECLARED WITH RESPECT TO ONE OR MORE PRIOR
DIVIDEND PERIODS (BUT WITHOUT ACCUMULATION OF ANY PREVIOUSLY UNDECLARED AND
UNPAID DIVIDENDS FOR PRIOR DIVIDEND PERIODS), BEFORE ANY DISTRIBUTION OF ASSETS
IS MADE TO HOLDERS OF THE CORPORATION'S COMMON STOCK OR ANY OTHER EQUITY
SECURITIES RANKING, AS TO LIQUIDATION, JUNIOR TO THE SERIES F PREFERRED STOCK.
AFTER PAYMENT OF THE FULL LIQUIDATING DISTRIBUTIONS TO WHICH THEY ARE ENTITLED,
THE HOLDERS OF SERIES F PREFERRED STOCK SHALL HAVE NO RIGHT OR CLAIM TO ANY OF
THE REMAINING ASSETS OF THE CORPORATION.
IF, UPON ANY LIQUIDATION OF THE CORPORATION, THE LEGALLY AVAILABLE ASSETS OF THE
CORPORATION ARE INSUFFICIENT TO MAKE FULL PAYMENT TO HOLDERS OF THE SERIES F
PREFERRED STOCK AND ALL EQUITY SECURITIES OF THE CORPORATION RANKING, AS TO
LIQUIDATION, ON PARITY WITH THE SERIES F PREFERRED STOCK, THEN THE HOLDERS OF
THE SERIES F PREFERRED STOCK AND SUCH OTHER EQUITY SECURITIES SHALL SHARE
RATABLY IN ANY DISTRIBUTION OF ASSETS IN PROPORTION TO THE FULL LIQUIDATING
DISTRIBUTIONS TO WHICH THEY WOULD OTHERWISE BE RESPECTIVELY ENTITLED.
THE FOLLOWING EVENTS, INDIVIDUALLY OR AS PART OF A SERIES OF TRANSACTIONS, SHALL
NOT BE CONSIDERED A LIQUIDATION OF THE CORPORATION WITHIN THE MEANING OF SECTION
4: (I) A CONSOLIDATION OR MERGER OF THE CORPORATION WITH OR INTO ANOTHER ENTITY;
(II) THE MERGER OF ANOTHER ENTITY WITH OR INTO THE CORPORATION; (III) A
STATUTORY SHARE EXCHANGE BY THE CORPORATION; OR (IV) A SALE, LEASE, TRANSFER OR
CONVEYANCE OF ALL OR SUBSTANTIALLY ALL OF THE CORPORATION'S ASSETS.
WRITTEN NOTICE OF ANY LIQUIDATION OF THE CORPORATION, STATING THE AMOUNT OF ANY
RESULTING LIQUIDATING DISTRIBUTIONS AND THE PAYMENT DATE WHEN, AND THE PLACE OR
PLACES WHERE, THE AMOUNTS DISTRIBUTABLE IN SUCH CIRCUMSTANCES SHALL BE PAYABLE,
SHALL BE GIVEN BY THE CORPORATION BY FIRST CLASS MAIL, POSTAGE PRE-PAID, NOT
LESS THAN 30 NOR MORE THAN 60 CALENDAR DAYS IMMEDIATELY PRECEDING THE PAYMENT
DATE STATED THEREIN, TO EACH HOLDER OF RECORD OF SERIES F PREFERRED STOCK AT ITS
ADDRESS APPEARING IN THE STOCK RECORDS OF THE CORPORATION.
REDEMPTION.
THE SHARES OF SERIES F PREFERRED STOCK ARE NOT REDEEMABLE PRIOR TO DECEMBER 1,
2010. ON OR AFTER DECEMBER 1, 2010, THE CORPORATION, AT ITS OPTION, UPON THE
GIVING OF WRITTEN NOTICE AS PROVIDED IN SECTION 5(D) AND SUBJECT TO THE RECEIPT
BY THE CORPORATION OF PRIOR APPROVAL FROM THE FEDERAL RESERVE BOARD, IF THEN
REGULATED UNDER THE CAPITAL GUIDELINES OR POLICIES OF THE FEDERAL RESERVE BOARD,
MAY REDEEM SHARES OF THE SERIES F PREFERRED STOCK, IN WHOLE OR FROM TIME TO TIME
IN PART, FOR CASH AT A REDEMPTION PRICE PER SHARE (THE "REDEMPTION PRICE") EQUAL
TO THE PRICE SPECIFIED BELOW FOR THE PERIOD IN WHICH THE DATE OF REDEMPTION (THE
"REDEMPTION DATE") FALLS, PLUS (I) ALL ACCRUED BUT UNPAID DIVIDENDS FOR THE THEN
CURRENT DIVIDEND PERIOD (WHETHER OR NOT EARNED OR DECLARED) TO, BUT EXCLUDING,
SUCH REDEMPTION DATE AND (II) ALL ACCRUED BUT UNPAID DIVIDENDS THAT HAVE BEEN
DECLARED WITH RESPECT TO ONE OR MORE PRIOR DIVIDEND PERIODS (BUT WITHOUT
ACCUMULATION OF ANY PREVIOUSLY UNDECLARED AND UNPAID DIVIDENDS FOR PRIOR
DIVIDEND PERIODS).
REDEMPTION DURING
THE 12-MONTH PERIOD BEGINNING DECEMBER 1, PRICE
----------------------------------------- ----------
2010 $1,050.00
2011 $1,045.00
2012 $1,040.00
2013 $1,035.00
2014 $1,030.00
2015 $1,025.00
2016 $1,020.00
2017 $1,015.00
2018 $1,010.00
2019 $1,005.00
2020 and thereafter $1,000.00
If any Redemption Date falls on a day that is not a Business Day, then such
Redemption Date shall be the next succeeding Business Day, and no additional
dividends shall accrue on the related payment as a result of such delay.
ON ANY REDEMPTION DATE, THE REDEMPTION PRICE FOR SHARES DESIGNATED FOR
REDEMPTION AS PROVIDED IN SECTION 5(D) SHALL BE PAID BY THE CORPORATION IN
IMMEDIATELY AVAILABLE FUNDS
AGAINST PRESENTATION AND SURRENDER OF SUCH SHARES AT A PLACE SPECIFIED FOR SUCH
PURPOSE IN SUCH NOTICE, AND SUCH SHARES SHALL THEREUPON BE CANCELED; PROVIDED,
HOWEVER, THAT IF SUCH REDEMPTION DATE FALLS AFTER A DIVIDEND RECORD DATE AND ON
OR PRIOR TO THE RELATED DIVIDEND PAYMENT DATE, THEN THE DIVIDENDS PAYABLE ON
SUCH DIVIDEND PAYMENT DATE SHALL BE PAID TO THE HOLDERS OF RECORD ON THE CLOSE
OF BUSINESS ON SUCH DIVIDEND RECORD DATE NOTWITHSTANDING THE REDEMPTION THEREOF
ON SUCH REDEMPTION DATE OR THE CORPORATION'S DEFAULT IN THE PAYMENT OF SUCH
DIVIDENDS ON SUCH DIVIDEND PAYMENT DATE. IF FEWER THAN ALL OF THE OUTSTANDING
SHARES OF SERIES F PREFERRED STOCK ARE TO BE REDEEMED IN ACCORDANCE WITH SECTION
5(A), THE SHARES TO BE REDEEMED SHALL BE SELECTED PRO RATA (AS NEARLY AS
PRACTICABLE WITHOUT CREATING FRACTIONAL SHARES) OR BY LOT OR IN SUCH OTHER
EQUITABLE METHOD PRESCRIBED BY THE BOARD OF DIRECTORS. IF FEWER THAN ALL OF THE
SHARES OF SERIES F PREFERRED STOCK REPRESENTED BY ANY CERTIFICATE THEREFOR ARE
TO BE REDEEMED, THE CORPORATION SHALL ISSUE WITHOUT CHARGE TO THE HOLDER THEREOF
A NEW CERTIFICATE REPRESENTING THE SHARES OF SERIES F PREFERRED STOCK NOT SO
REDEEMED.
(c) NOTICE OF REDEMPTION WILL BE MAILED BY THE CORPORATION OR ITS
AGENT, POSTAGE PRE-PAID, NOT LESS THAN 30 NOR MORE THAN 60 CALENDAR DAYS
IMMEDIATELY PRECEDING THE APPLICABLE REDEMPTION DATE, TO THE HOLDERS OF RECORD
OF THE SHARES OF SERIES F PREFERRED STOCK TO BE REDEEMED AT THEIR RESPECTIVE
ADDRESSES APPEARING IN THE STOCK RECORDS OF THE CORPORATION, AND TO THE
CALCULATION AGENT AND ANY TRANSFER AGENT FOR THE SHARES. IN ADDITION TO ANY
INFORMATION REQUIRED BY LAW, EACH WRITTEN NOTICE SHALL STATE: (I) THE APPLICABLE
REDEMPTION DATE; (II) THE REDEMPTION PRICE; (III) THE NUMBER OF SHARES OF SERIES
F PREFERRED STOCK TO BE REDEEMED AND, IF LESS THAN ALL OF THE SHARES OF A
PARTICULAR HOLDER ARE TO BE REDEEMED, THE NUMBER OF SUCH SHARES TO BE REDEEMED;
(IV) THE PLACE OR PLACES WHERE THE HOLDERS OF SERIES F PREFERRED STOCK MAY
PRESENT AND SURRENDER THEIR SHARES FOR PAYMENT OF THE REDEMPTION PRICE; AND (V)
THAT DIVIDENDS ON THE SHARES OF SERIES F PREFERRED STOCK TO BE REDEEMED WILL
CEASE TO ACCRUE ON SUCH REDEMPTION DATE.
(d) AT ITS ELECTION, THE CORPORATION MAY, PRIOR TO THE APPLICABLE
REDEMPTION DATE, IRREVOCABLY DEPOSIT THE REDEMPTION PRICE FOR THE SHARES OF
SERIES F PREFERRED STOCK DESIGNATED FOR REDEMPTION IN TRUST FOR THE HOLDERS
THEREOF WITH A BANK OR TRUST COMPANY THAT IS NOT AFFILIATED WITH THE
CORPORATION, IN WHICH CASE THE NOTICE OF REDEMPTION TO HOLDERS OF RECORD OF THE
SERIES F PREFERRED STOCK TO BE REDEEMED SHALL: (I) STATE THE DATE OF SUCH
DEPOSIT, (II) SPECIFY THE OFFICE OF SUCH BANK OR TRUST COMPANY AS THE PLACE OF
PAYMENT OF THE REDEMPTION PRICE AND (III) REQUIRE SUCH HOLDERS TO PRESENT AND
SURRENDER THEIR RELATED SHARES AT SUCH PLACE ON SUCH REDEMPTION DATE AGAINST
PAYMENT OF THE REDEMPTION PRICE THEREFOR. ANY MONIES SO DEPOSITED WHICH REMAIN
UNCLAIMED AT THE END OF TWO YEARS AFTER SUCH REDEMPTION DATE SHALL BE RETURNED
BY SUCH BANK OR TRUST COMPANY TO THE CORPORATION, AND AFTER THE RETURN OF SUCH
MONIES, THE HOLDERS OF THE SERIES F PREFERRED STOCK SHALL LOOK SOLELY TO THE
CORPORATION FOR PAYMENT OF THE REDEMPTION PRICE WITHOUT INTEREST.
(e) NOTICE HAVING BEEN MAILED IN ACCORDANCE WITH SECTION 5, FROM AND
AFTER THE APPLICABLE REDEMPTION DATE (UNLESS THE CORPORATION DEFAULTS IN PAYMENT
OF THE REDEMPTION PRICE), ALL DIVIDENDS ON THE SHARES OF SERIES F PREFERRED
STOCK DESIGNATED FOR REDEMPTION SHALL CEASE TO ACCRUE AND ALL RIGHTS OF THE
HOLDERS THEREOF, EXCEPT THE RIGHT TO RECEIVE THE REDEMPTION PRICE THEREFOR,
SHALL TERMINATE WITH RESPECT TO SUCH SHARES, AND SUCH SHARES SHALL NOT
THEREAFTER BE TRANSFERRED ON THE CORPORATION'S STOCK RECORDS (EXCEPT
WITH THE CONSENT OF THE CORPORATION) OR BE DEEMED TO BE OUTSTANDING FOR ANY
PURPOSE WHATSOEVER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNLESS FULL DIVIDENDS
ON THE SERIES F PREFERRED STOCK HAVE BEEN OR CONTEMPORANEOUSLY ARE DECLARED AND
PAID OR DECLARED AND A SUM SUFFICIENT FOR PAYMENT THEREOF SET APART FOR THE THEN
CURRENT DIVIDEND PERIOD, (I) NO SHARES OF SERIES F PREFERRED STOCK SHALL BE
REDEEMED UNLESS ALL OUTSTANDING SHARES OF SERIES F PREFERRED STOCK ARE
SIMULTANEOUSLY REDEEMED AND (II) THE CORPORATION SHALL NOT PURCHASE OR OTHERWISE
ACQUIRE, DIRECTLY OR INDIRECTLY, ANY SHARES OF SERIES F PREFERRED STOCK.
ANY SHARES OF SERIES F PREFERRED STOCK THAT HAVE BEEN REDEEMED BY THE
CORPORATION SHALL, AFTER SUCH REDEMPTION, HAVE THE STATUS OF AUTHORIZED BUT
UNISSUED PREFERRED STOCK, WITHOUT DESIGNATION AS TO SERIES, UNTIL ONCE MORE
DESIGNATED AS PART OF A PARTICULAR SERIES OF PREFERRED STOCK BY THE BOARD OF
DIRECTORS.
THE SERIES F PREFERRED STOCK SHALL NOT BE ENTITLED TO THE BENEFIT OF, OR BE
SUBJECT TO, ANY SINKING FUND AND SHALL NOT BE SUBJECT TO MANDATORY REDEMPTION OR
REDEMPTION AT THE OPTION OF THE HOLDERS THEREOF.
VOTING RIGHTS.
HOLDERS OF THE SERIES F PREFERRED STOCK SHALL NOT HAVE ANY VOTING RIGHTS, EXCEPT
AS REQUIRED BY LAW OR AS SET FORTH HEREIN.
WHENEVER FULL DIVIDENDS ON THE SERIES F PREFERRED STOCK SHALL NOT HAVE BEEN PAID
(I) IN AN AGGREGATE AMOUNT EQUAL TO OR GREATER THAN FOUR FULL QUARTERLY
DIVIDENDS (WHETHER OR NOT SUCH DIVIDENDS RELATED TO CONSECUTIVE DIVIDEND
PERIODS) OR (II) FOR ONE QUARTERLY DIVIDEND PERIOD FOLLOWING THE PAYMENT IN FULL
OF 12 CONSECUTIVE QUARTERLY DIVIDENDS (A "PREFERRED DIVIDEND CURE") AFTER THE
OCCURRENCE OF THE CIRCUMSTANCES DESCRIBED IN CLAUSE (I) ABOVE (EACH, A
"PREFERRED DIVIDEND DEFAULT"), THE HOLDERS OF RECORD OF THE SERIES F PREFERRED
STOCK (VOTING AS A SINGLE CLASS WITH ALL OTHER EQUITY SECURITIES OF THE
CORPORATION UPON WHICH LIKE VOTING RIGHTS HAVE BEEN CONFERRED AND ARE
EXERCISABLE ("PARITY VOTING PREFERRED STOCK")) SHALL BE ENTITLED TO ELECT TWO
ADDITIONAL DIRECTORS (THE "PREFERRED STOCK DIRECTORS") TO THE BOARD OF DIRECTORS
AT A SPECIAL MEETING CALLED BY THE HOLDERS OF RECORD OF AT LEAST 10% OF THE
OUTSTANDING SHARES OF SERIES F PREFERRED STOCK (OR THE HOLDERS OF ANY OTHER
PARITY VOTING PREFERRED STOCK) (UNLESS SUCH REQUEST IS RECEIVED LESS THAN 90
CALENDAR DAYS BEFORE THE DATE FIXED FOR THE NEXT ANNUAL MEETING OF STOCKHOLDERS)
OR, IF THE REQUEST FOR A SPECIAL MEETING IS RECEIVED BY THE CORPORATION LESS
THAN 90 CALENDAR DAYS BEFORE THE DATE FIXED FOR THE NEXT ANNUAL MEETING OF
STOCKHOLDERS, AT THE NEXT ANNUAL MEETING OF STOCKHOLDERS, AND AT EACH SUBSEQUENT
ANNUAL MEETING IF A PREFERRED DIVIDEND DEFAULT THEN EXISTS. UPON ELECTION, THE
PREFERRED STOCK DIRECTORS SHALL BECOME DIRECTORS OF THE CORPORATION AND THE
AUTHORIZED NUMBER OF DIRECTORS OF THE CORPORATION SHALL THEREUPON AUTOMATICALLY
BE INCREASED BY TWO.
ON ANY MATTER IN WHICH THE HOLDERS OF SERIES F PREFERRED STOCK ARE ENTITLED TO
VOTE (AS EXPRESSLY PROVIDED HEREIN OR AS MAY BE REQUIRED BY LAW), INCLUDING ANY
ACTION BY WRITTEN CONSENT, EACH SHARE OF SERIES F PREFERRED STOCK SHALL BE
ENTITLED TO ONE VOTE, EXCEPT THAT WHEN ANY PARITY VOTING PREFERRED STOCK SHALL
HAVE THE RIGHT TO VOTE WITH THE SERIES F PREFERRED STOCK AS A SINGLE CLASS ON
ANY MATTER, THEN THE SERIES F PREFERRED STOCK AND SUCH PARITY VOTING PREFERRED
STOCK SHALL BE ENTITLED TO ONE VOTE PER $1,000.00 OF LIQUIDATION PREFERENCE WITH
RESPECT TO ANY SUCH MATTER, AND A PLURALITY OF THE VOTING POWER OF THE
SERIES F PREFERRED STOCK AND SUCH PARITY VOTING PREFERRED STOCK SHALL DETERMINE
ANY SUCH MATTER.
UPON A PREFERRED DIVIDEND CURE FOLLOWING THE MOST RECENT PREFERRED DIVIDEND
DEFAULT, THE HOLDERS OF SERIES F PREFERRED STOCK SHALL BE DIVESTED OF THE VOTING
RIGHTS SET FORTH IN SECTION 6(B) AND THE TERM OF OFFICE OF THE PREFERRED STOCK
DIRECTORS ELECTED PURSUANT TO SECTION 6(B) SHALL TERMINATE (SUBJECT TO REVESTING
IN THE EVENT OF EACH AND EVERY PREFERRED DIVIDEND DEFAULT). A PREFERRED STOCK
DIRECTOR MAY BE REMOVED AT ANY TIME WITH OR WITHOUT CAUSE BY THE VOTE OR CONSENT
OF, AND SHALL NOT BE REMOVED OTHERWISE THAN BY THE VOTE OR CONSENT OF, THE
HOLDERS OF RECORD OF A MAJORITY OF THE OUTSTANDING SHARES OF SERIES F PREFERRED
STOCK AND PARITY VOTING PREFERRED STOCK THEN HAVING THE VOTING RIGHTS SET FORTH
IN SECTION 6(B) VOTING AS A SINGLE CLASS. ANY VACANCY IN THE OFFICE OF A
PREFERRED STOCK DIRECTOR MAY BE FILLED BY A VOTE OF THE HOLDERS OF RECORD OF A
MAJORITY OF THE OUTSTANDING SHARES OF SERIES F PREFERRED STOCK AND PARITY VOTING
PREFERRED STOCK THEN HAVING THE VOTING RIGHTS SET FORTH IN SECTION 6(B) ABOVE
VOTING AS A SINGLE CLASS. EACH PREFERRED STOCK DIRECTOR SHALL BE ENTITLED TO ONE
VOTE ON ANY MATTER CONSIDERED BY THE BOARD OF DIRECTORS. THE CORPORATION SHALL
NOT, WITHOUT THE AFFIRMATIVE VOTE OR CONSENT OF THE HOLDERS OF RECORD OF A
MAJORITY OF THE SHARES OF SERIES F PREFERRED STOCK OUTSTANDING AT THE TIME,
GIVEN IN PERSON OR BY PROXY, EITHER IN WRITING OR AT A MEETING, (I) AUTHORIZE,
CREATE OR ISSUE, OR INCREASE THE AUTHORIZED, CREATED OR ISSUED AMOUNT OF, ANY
CLASS OR SERIES OF THE CORPORATION'S EQUITY SECURITIES RANKING, AS TO DIVIDENDS
OR UPON LIQUIDATION, SENIOR TO THE SERIES F PREFERRED STOCK, OR RECLASSIFY ANY
AUTHORIZED CLASS OR SERIES OF EQUITY SECURITIES OF THE CORPORATION INTO ANY SUCH
EQUITY SECURITIES, OR AUTHORIZE, CREATE OR ISSUE ANY OBLIGATION OR SECURITY
CONVERTIBLE INTO OR EVIDENCING THE RIGHT TO PURCHASE ANY SUCH EQUITY SECURITIES
OR (II) AMEND, ALTER OR REPEAL THE PROVISIONS OF THE CORPORATION'S CERTIFICATE
OF INCORPORATION ("THE CHARTER") (INCLUDING THIS CERTIFICATE OF DESIGNATION),
WHETHER BY MERGER OR CONSOLIDATION (IN EITHER CASE, AN "EVENT") OR OTHERWISE, SO
AS TO MATERIALLY AND ADVERSELY AFFECT ANY RIGHT, PREFERENCE, PRIVILEGE OR VOTING
POWER OF THE SERIES F PREFERRED STOCK; PROVIDED, HOWEVER, THAT WITH RESPECT TO
ANY SUCH AMENDMENT, ALTERATION OR REPEAL OF THE PROVISIONS OF THE CHARTER
(INCLUDING THIS CERTIFICATE OF DESIGNATION), UPON THE OCCURRENCE OF AN EVENT, SO
LONG AS THE SHARES OF SERIES F PREFERRED STOCK REMAIN OUTSTANDING WITH THE TERMS
THEREOF UNCHANGED IN ANY MATERIAL AND ADVERSE RESPECT, TAKING INTO ACCOUNT THAT,
UPON THE OCCURRENCE OF AN EVENT, THE CORPORATION MAY NOT BE THE SURVIVING
ENTITY, THE OCCURRENCE OF ANY SUCH EVENT SHALL NOT BE DEEMED TO MATERIALLY AND
ADVERSELY AFFECT THE RIGHTS, PREFERENCES, PRIVILEGES OR VOTING POWERS OF THE
SERIES F PREFERRED STOCK; AND PROVIDED, FURTHER, THAT ANY INCREASE IN THE AMOUNT
OF AUTHORIZED PREFERRED STOCK (SUBJECT TO THE CONDITIONS OF CLAUSE (I) ABOVE),
OR ANY INCREASE IN THE AUTHORIZED, CREATED OR ISSUED AMOUNT OF SERIES F
PREFERRED STOCK, OR THE AUTHORIZATION, CREATION OR ISSUANCE OF, OR INCREASE IN
THE AUTHORIZED, CREATED OR ISSUED AMOUNT OF, ANY CLASS OR SERIES OF THE
CORPORATION'S EQUITY SECURITIES RANKING, AS TO DIVIDENDS AND UPON LIQUIDATION,
ON PARITY WITH OR JUNIOR TO THE SERIES F PREFERRED STOCK, SHALL NOT BE DEEMED TO
MATERIALLY AND ADVERSELY AFFECT ANY RIGHT, PREFERENCE, PRIVILEGE OR VOTING POWER
OF THE SERIES F PREFERRED STOCK.
THE FOREGOING VOTING PROVISIONS SHALL NOT APPLY IF, AT OR PRIOR TO THE TIME WHEN
THE ACTION WITH RESPECT TO WHICH SUCH VOTE OR CONSENT WOULD OTHERWISE BE
REQUIRED SHALL BE EFFECTED, ALL OUTSTANDING SHARES OF SERIES F PREFERRED STOCK
SHALL HAVE BEEN REDEEMED OR CALLED FOR REDEMPTION UPON PROPER NOTICE AND FUNDS
SUFFICIENT TO EFFECT SUCH REDEMPTION SHALL HAVE
BEEN IRREVOCABLY DEPOSITED IN TRUST FOR THE HOLDERS THEREOF WITH A BANK OR TRUST
COMPANY THAT IS NOT AFFILIATED WITH THE CORPORATION.
CONVERSION. THE SERIES F PREFERRED STOCK IS NOT CONVERTIBLE INTO OR EXCHANGEABLE
FOR ANY OTHER PROPERTY OR SECURITIES OF THE CORPORATION OR ANY OTHER ENTITY.
EXCLUSION OF OTHER RIGHTS. THE SHARES OF SERIES F PREFERRED STOCK SHALL NOT HAVE
ANY PREFERENCES, RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO
DIVIDENDS OR OTHER DISTRIBUTIONS, QUALIFICATIONS OR TERMS OR CONDITIONS OTHER
THAN THOSE SPECIFICALLY SET FORTH IN THIS CERTIFICATE OF DESIGNATION. THE SHARES
OF SERIES F PREFERRED STOCK SHALL NOT HAVE THE BENEFIT OF, AND SHALL NOT BE
SUBJECT TO, ANY PREEMPTIVE OR SIMILAR RIGHTS.
HEADINGS OF SUBDIVISIONS. THE HEADINGS OF THE VARIOUS SUBDIVISIONS HEREOF ARE
FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE INTERPRETATION OF ANY
OF THE PROVISIONS HEREOF.
SEVERABILITY OF PROVISIONS. IF ANY PREFERENCE, RIGHT, VOTING POWER, RESTRICTION,
LIMITATION AS TO DIVIDENDS OR OTHER DISTRIBUTIONS, QUALIFICATION OR OTHER TERM
OR CONDITION OF THE SERIES F PREFERRED STOCK IS INVALID, UNLAWFUL OR INCAPABLE
OF BEING ENFORCED BY REASON OF ANY RULE OF LAW OR PUBLIC POLICY, ALL OTHER
PREFERENCES, RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS OR
OTHER DISTRIBUTIONS, QUALIFICATIONS AND OTHER TERMS OR CONDITIONS OF THE SERIES
F PREFERRED STOCK WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID, UNLAWFUL OR
UNENFORCEABLE PROVISION THEREOF SHALL, NEVERTHELESS, REMAIN IN FULL FORCE AND
EFFECT, AND NO PREFERENCE, RIGHT, VOTING POWER, RESTRICTION, LIMITATION AS TO
DIVIDENDS OR OTHER DISTRIBUTIONS, QUALIFICATION OR OTHER TERM OR CONDITION OF
THE SERIES F PREFERRED STOCK SHALL BE DEEMED DEPENDENT UPON ANY OTHER PROVISION
THEREOF UNLESS SO EXPRESSED THEREIN.
RESTRICTIONS ON TRANSFER.
THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, UNTIL SO REGISTERED, MAY NOT BE OFFERED OR SOLD
EXCEPT IN A TRANSACTION EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
UNLESS AND UNTIL THE SHARES ARE REGISTERED UNDER THE SECURITIES ACT, PRIOR TO
(X) THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME SPECIFIED IN RULE
144(K) UNDER THE SECURITIES ACT) AFTER THE LATER OF THE DATE OF ORIGINAL
ISSUANCE OF THE APPLICABLE SHARES AND THE LAST DATE ON WHICH THE CORPORATION OR
ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE
CORPORATION WAS THE OWNER OF SUCH SHARES AND (Y) SUCH LATER DATE, IF ANY, AS MAY
BE REQUIRED BY APPLICABLE LAW, ALL CERTIFICATES REPRESENTING SUCH SHARES SHALL
BEAR THE FOLLOWING LEGEND AND BE SUBJECT TO THE RESTRICTIONS SPECIFIED THEREIN:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY
BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS THE LATER OF (i)
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND
(Z) THE LAST DATE ON WHICH THE CORPORATION OR ANY AFFILIATE (AS DEFINED IN RULE
405 UNDER THE SECURITIES ACT) OF THE CORPORATION WAS THE HOLDER OF THIS SECURITY
OR SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE
LAW, ONLY (A) TO THE CORPORATION, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER", AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE CORPORATION'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
REASONABLY SATISFACTORY TO IT. PRIOR TO THE RESALE RESTRICTION TERMINATION DATE,
THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY
WITH THE FOREGOING RESTRICTIONS. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE,
FURTHER AGREES THAT IT WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTIONS WITH REGARD HERETO OR THERETO EXCEPT AS PERMITTED BY THE SECURITIES
ACT.
THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH A "PLAN"), OR
AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY
ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER
OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE
CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN LOTS OF AT LEAST 100
SECURITIES. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A LOT OF LESS THAN 100
SECURITIES PRIOR TO THE RESALE RESTRICTION TERMINATION DATE SHALL BE DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DIVIDENDS
ON THIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR
ANY INTEREST OR PARTICIPATION HEREIN.
THE SHARES SHALL INITIALLY BE REPRESENTED IN BOOK-ENTRY ONLY FORM THROUGH THE
FACILITIES OF THE DEPOSITORY TRUST COMPANY ("DTC"). NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED HEREIN, THE CORPORATION SHALL NOT CAUSE THE SHARES TO BE
REMOVED FROM THE BOOK-ENTRY ONLY SYSTEM OF DTC. SO LONG AS THE SHARES ARE
REPRESENTED IN BOOK-ENTRY ONLY FORM, THE RELATED GLOBAL CERTIFICATE(S) SHALL
BEAR THE FOLLOWING LEGEND:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CORPORATION SHALL DELIVER, BY HARDCOPY OR ELECTRONIC TRANSMISSION, (I) TO
EACH HOLDER OF RECORD OF SERIES F PREFERRED STOCK EACH REPORT ON FORM 10-K OR
FORM 10-KSB AND FORM 10-Q OR FORM 10-QSB, IF ANY, PREPARED BY THE CORPORATION
AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT") WITHIN 10
BUSINESS DAYS AFTER THE FILING THEREOF OR (II) IF THE CORPORATION IS (A) NOT
THEN SUBJECT TO SECTION 13 OR 15(D) OF THE EXCHANGE ACT (A "PRIVATE ENTITY") OR
(B) EXEMPT FROM REPORTING PURSUANT TO RULE 12G3-2(B) THEREUNDER, TO EACH HOLDER
OF RECORD OF SERIES F PREFERRED STOCK AND PROSPECTIVE TRANSFEREES OF EACH SUCH
HOLDER, UPON REQUEST, THE INFORMATION REQUIRED BY RULE 144A(D)(4) UNDER THE
SECURITIES ACT. NOTWITHSTANDING THE FOREGOING, SO LONG AS THE CORPORATION HAS
ACTUAL KNOWLEDGE THAT THE NUVEEN TAX-ADVANTAGED FLOATING RATE FUND IS A
BENEFICIAL OWNER OF SHARES OF SERIES F PREFERRED STOCK, AND THE CORPORATION IS
(I) A PRIVATE ENTITY THAT, ON THE DATE OF ORIGINAL ISSUANCE OF THE SHARES, IS
REQUIRED TO PROVIDE AUDITED CONSOLIDATED FINANCIAL STATEMENTS TO ITS PRIMARY
REGULATORY AUTHORITY, (II) A PRIVATE ENTITY THAT, ON THE DATE OF ORIGINAL
ISSUANCE OF THE SHARES, IS NOT REQUIRED TO PROVIDE AUDITED CONSOLIDATED
FINANCIAL STATEMENTS TO ITS PRIMARY REGULATORY AUTHORITY BUT SUBSEQUENTLY
BECOMES SUBJECT TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENT REPORTING
REQUIREMENTS OF THAT REGULATORY AUTHORITY OR (III) SUBJECT TO SECTION 13 OR
15(D) OF THE EXCHANGE ACT ON THE DATE OF ORIGINAL ISSUANCE OF THE SHARES OR
BECOMES SO SUBJECT AFTER THE DATE HEREOF BUT SUBSEQUENTLY BECOMES A PRIVATE
ENTITY, THEN, WITHIN 90 DAYS AFTER THE END OF EACH FISCAL YEAR, BEGINNING WITH
THE FISCAL YEAR IN WHICH THE SHARES WERE ORIGINALLY ISSUED IF THE CORPORATION
WAS THEN SUBJECT TO (X) SECTION 13 OR 15(D) OF THE EXCHANGE ACT OR (Y) AUDITED
CONSOLIDATED FINANCIAL STATEMENT REPORTING REQUIREMENTS OF ITS PRIMARY
REGULATORY AUTHORITY OR, OTHERWISE, THE EARLIEST FISCAL YEAR IN WHICH THE
CORPORATION BECOMES SUBJECT TO (1) SECTION 13 OR 15(D) OF THE EXCHANGE ACT OR
(2) THE AUDITED CONSOLIDATED FINANCIAL STATEMENT REPORTING REQUIREMENTS OF ITS
PRIMARY REGULATORY AUTHORITY, THE CORPORATION SHALL DELIVER, BY HARDCOPY OR
ELECTRONIC TRANSMISSION, TO THE NUVEEN TAX-ADVANTAGED FLOATING RATE FUND, UNLESS
OTHERWISE PROVIDED PURSUANT TO THE PRECEDING SENTENCE, (A) A COPY OF THE
CORPORATION'S AUDITED CONSOLIDATED FINANCIAL STATEMENTS (INCLUDING BALANCE SHEET
AND INCOME STATEMENT) COVERING THE RELATED ANNUAL PERIOD AND (B) THE REPORT OF
THE INDEPENDENT ACCOUNTANTS WITH RESPECT TO SUCH FINANCIAL STATEMENTS.
IF AND SO LONG AS THE CORPORATION HAS ACTUAL KNOWLEDGE THAT THE NUVEEN
TAX-ADVANTAGED FLOATING RATE FUND IS A BENEFICIAL OWNER OF SHARES OF SERIES F
PREFERRED STOCK, THE CORPORATION WILL CAUSE COPIES OF ITS REPORTS ON FORM FR
Y-9C AND FR Y-9CS TO BE DELIVERED TO SUCH BENEFICIAL OWNER PROMPTLY FOLLOWING
THEIR FILING WITH THE APPLICABLE REGULATORY AUTHORITY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be executed in its name and on its behalf by its Senior Vice
President and Chief Financial Officer and attested to by its Secretary on this
27th day of September, 2005.
ATTEST: City National Bancshares Corporation
/s/Raul Oseguera /s/Edward R. Wright/s/
- -------------------------------- -----------------------------------------
Secretary Edward R. Wright
Senior Vice President and Chief Financial
Officer