Exhibit 3(i)
CERTIFICATE OF INCORPORATION
OF
SBT BANCORP, INC.
(Conformed Copy - As of March 24, 2009)
The undersigned incorporator hereby forms a corporation (the
"Corporation") under the Connecticut Business Corporation Act, as amended from
time to time (the "Act").
FIRST: The name of the Corporation is:
SBT Bancorp, Inc.
SECOND: The number of shares of capital stock of the Corporation hereby
authorized is 2,100,000 shares, which shall be divided into classes as follows:
2,000,000 shares of common stock, no par value ("Common
Stock"); and
100,000 shares of preferred stock, no par value ("Preferred
Stock").
The following is a statement of the preferences, limitations
and relative rights of each class of capital stock of the
Corporation.
A. Common Stock.
(1) General. The voting, dividend and liquidation rights of
the holders of the Common Stock are subject to and qualified
by the rights of the holders of the Preferred Stock of any
series as may be determined by the Board of Directors before
the issuance of the Preferred Stock of any series.
(2) Voting. The holders of the Common Stock are entitled to
one vote for each share held on all matters submitted to the
shareholders for action.
(3) Dividends. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as and
when determined by the Board of Directors and subject to any
preferential dividend rights of any then outstanding Preferred
Stock.
(4) Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of
Common Stock will be entitled to receive all assets of the
Corporation available for distribution to its shareholders,
subject to any preferential rights of any then outstanding
Preferred Stock.
B. Preferred Stock.
(1) General. Preferred Stock may be issued from time to time
in one or more series, each to have such terms as are set
forth herein and in the resolutions of the Board of Directors
authorizing the issue of such series. Any shares of Preferred
Stock which may be redeemed, purchased or otherwise acquired
by the Corporation may be reissued. Different series of
Preferred Stock shall not be construed to constitute different
classes of shares for the purposes of voting by classes unless
expressly so provided.
(2) Authority of Board of Directors. The Board of Directors
may from time to time issue the Preferred Stock in one or more
series. The Board of Directors may, in connection with the
creation of any such series, determine the preferences,
limitations and relative rights of each such series before the
issuance of such series. Without limiting the foregoing, the
Board of Directors may fix the voting powers, dividend rights,
conversion rights, redemption privileges and liquidation
preferences, all as the Board of Directors deems appropriate,
to the full extent now or hereafter permitted by the Act. The
resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other
series to the extent permitted by law. Except as otherwise
provided in this Certificate of Incorporation, no vote of the
holders of the Preferred Stock or Common Stock shall be a
prerequisite to the designation or issuance of shares of any
series of the Preferred Stock authorized by and complying with
the conditions of this Certificate of Incorporation and the
Act.
(3) Fixed Rate Cumulative Perpetual Preferred Stock, Series A.
A series of Preferred Stock of the Corporation, no par value
per share, is created, and the designation and amount thereof
and the voting powers, preferences and relative,
participating, optional and other special rights of the shares
of such series, and the qualifications, limitations or
restrictions thereof are as follows:
(i) Designation and Number of Shares. There is hereby created
out of the authorized and unissued shares of the Preferred
Stock a series of preferred stock designated as the "Fixed
Rate Cumulative Perpetual Preferred Stock, Series A" (the "UST
Preferred Stock"). The authorized number of shares of UST
Preferred Stock shall be 4,000.
(ii) 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
Certificate of Incorporation to the same extent as if such
provisions had been set forth in full herein.
(iii) Definitions. The following terms are used in this
Certificate of Incorporation (including the Standard
Provisions in Annex A hereto) as defined below:
(a) "Common Stock" means the common stock, no par
value 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 UST Preferred
Stock as to dividend rights and/or as to rights on
liquidation, dissolution or winding up of the Corporation.
(d) "Liquidation Amount" means $1,000 per share of
UST Preferred Stock.
(e) "Minimum Amount" means $1,000,000.
(f) "Parity Stock" means any class or series of stock
of the Corporation (other than UST Preferred Stock) the terms
of which do not expressly provide that such class or series
will rank senior or junior to UST 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.
(iv) Certain Voting Matters. Holders of shares of UST
Preferred Stock will be entitled to one vote for each such
share on any matter on which holders of UST Preferred Stock
are entitled to vote, including any action by written consent.
(4) Fixed Rate Cumulative Perpetual Preferred Stock, Series B.
Another series of Preferred Stock of the Corporation, no par
value per share, is created, and the designation and amount
thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares
of such series, and the qualifications, limitations or
restrictions thereof are as follows:
(i) 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
B" (the "Designated Preferred Stock"). The authorized number
of shares of Designated Preferred Stock shall be 200.002.
(ii) Standard Provisions. The Standard Provisions contained in
Annex B attached hereto are incorporated herein by reference
in their entirety and shall be deemed to be a part of this
Certificate of Incorporation to the same extent as if such
provisions had been set forth in full herein.
(iii) Definitions. The following terms are used in this
Certificate of Incorporation (including the Standard
Provisions in Annex B hereto) as defined below:
(a) "Common Stock" means the common stock, no par
value 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.
(d) "Liquidation Amount" means $1,000 per share of
Designated Preferred Stock.
(e) "Minimum Amount" means $50,000.
(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). Without limiting the
foregoing, Parity Stock shall include the Corporation's UST
Preferred Stock.
(g) "Signing Date" means the Original Issue Date.
(h) "UST Preferred Stock" means the Corporation's
Fixed Rate Cumulative Perpetual Preferred Stock, Series A.
(iv) 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.
THIRD: The nature of the business to be transacted, and the purposes to
be promoted or carried out by the Corporation, are to engage in any lawful act
or activity for which corporations may be formed under the Act. The Corporation
shall have all powers granted by law and all powers granted in the Act, as the
same may be amended from time to time.
FOURTH: The personal liability of any director to the Corporation or
its shareholders for monetary damages for breach of duty as a director is hereby
limited to the amount of the compensation received by the director for serving
the Corporation during the year of the violation if such breach did not (a)
involve a knowing and culpable violation of law by the director, (b) enable the
director or an associate, as defined in subdivision (2) of Section 33-840 of the
Act, to receive an improper personal economic gain, (c) show a lack of good
faith and a conscious disregard for the duty of the director to the Corporation
under circumstances in which the director was aware that his conduct or omission
created an unjustifiable risk of serious injury to the Corporation, (d)
constitute a sustained and unexcused pattern of inattention that amounted to an
abdication of the director's duty to the Corporation, or (e) create liability
under Section 33-757 of the Act. Any lawful repeal or modification of this
provision shall not adversely affect any right or protection of a director
existing at or prior to the time of such repeal or modification.
FIFTH:
1. The Corporation shall, to the fullest extent permitted by the Act,
indemnify its directors and officers for liability (including any obligation to
pay a judgment, settlement, penalty, fine or excise tax, or reasonable expenses
incurred with respect to any proceeding) to any person for any action taken, or
any failure to take any action, as a director or officer, except liability that
(a) involved a knowing and culpable violation of law by the director or officer,
(b) enabled the director or officer or an associate, as defined in subdivision
(2) of Section 33-840 of the Act, to receive an improper personal economic gain,
(c) showed a lack of good faith and a conscious disregard for the duty of the
director or officer to the Corporation under circumstances in which the director
or officer was aware that his conduct or omission created an unjustifiable risk
of serious injury to the Corporation, (d) constituted a sustained and unexcused
pattern of inattention that amounted to an abdication of the director's or
officer's duty to the Corporation, or (e) created liability under Section 33-757
of the Act. For purposes of this Article FIFTH, a "proceeding" shall include any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative and whether formal or
informal. Any lawful repeal or modification of this provision shall not
adversely affect any right or protection of a director or officer existing at or
prior to the time of such repeal or modification. The indemnification provided
for herein shall not be deemed exclusive of any other rights to indemnification,
whether under the Bylaws or any agreement, by vote of shareholders or
disinterested directors or otherwise.
2. The indemnification rights provided in this Article shall inure to
the benefit of the heirs, executors and administrators of the director or
officer.
3. Expenses incurred by a director or officer in defending a proceeding
shall be paid by the Corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall be ultimately determined that such
director or officer is not entitled to be indemnified by the Corporation as
authorized by the Act.
4. For purposes of Articles FOURTH and FIFTH, references to directors
and officers shall include former directors and officers.
SIXTH:
1. The number of directors shall consist of not less than three (3)
directors. The number of positions on the board of directors shall be the number
fixed by resolution of the shareholders or board of directors, or, in the
absence of such resolution, shall be the number of directors elected at the
preceding annual meeting of shareholders. The number of positions on the board
of directors for any year, as fixed in accordance with the foregoing may be
increased or decreased at any time as provided by law.
2. The Board of Directors shall be divided into three classes in
respect of term of office, designated as Class I, Class II and Class III, with
each class containing as near may be one-third (1/3) of the whole number of the
Board. Of the first Board of Directors, the members of Class I shall serve until
the first Annual Meeting of Shareholders held after their election, the members
of Class II shall serve until the second Annual Meeting of Shareholders held
after their election, and the members of Class III shall serve until the third
Annual Meeting of Shareholders held after their election; provided, however,
that in each case directors shall continue to serve until their successors shall
be elected and qualified, or until their earlier resignation, removal from
office, death or incapacity. At each Annual Meeting of the Shareholders
following election of the first Board of Directors, one class of directors shall
be elected to serve until the Annual Meeting of Shareholders held three years
next following and until their successors shall be elected and shall qualify.
SEVENTH: The street address of the Corporation's initial registered
office and the name of its initial registered agent at such address is:
c/o The Simsbury Bank & Trust Company
981 Hopmeadow Street
P.O. Box 248
Simsbury, CT 06070
The residence address of the initial registered agent is:
Martin J. Geitz
318 Strickland Street
Glastonbury, CT 06033
The initial registered agent hereby accepts appointment:
/s/ Martin J. Geitz
----------------------------
Martin J. Geitz
ANNEX A
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FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A
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STANDARD PROVISIONS
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Section 1. General Matters. Each share of UST Preferred Stock shall be
identical in all respects to every other share of UST Preferred Stock. The UST
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 UST 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 UST
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 UST 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).
(k) "Original Issue Date" means the date on which shares of UST
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 UST 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 November 17, 2008).
(o) "Standard Provisions" mean these Standard Provisions that form a
part of the Certificate of Designations relating to the UST Preferred Stock.
(p) "Successor Preferred Stock" has the meaning set forth in Section
5(a).
(q) "Voting Parity Stock" means, with regard to any matter as to which
the holders of UST 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 UST Preferred Stock shall be entitled to receive,
on each share of UST 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 UST
Preferred Stock and (ii) the amount of accrued and unpaid dividends for any
prior Dividend Period on such share of UST 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.
Dividends that are payable on UST 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 UST 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 UST Preferred Stock on any Dividend
Payment Date will be payable to holders of record of UST 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 UST 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 UST 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 UST 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 UST 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
UST 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 and consistent with
past practice; (ii) the acquisition of 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 (iii) 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.
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 UST Preferred Stock and any shares of Parity
Stock, all dividends declared on UST 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 UST 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 UST
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 UST 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 UST Preferred Stock shall be
entitled to receive for each share of UST 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 UST 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 UST
Preferred Stock and the corresponding amounts payable with respect of any other
stock of the Corporation ranking equally with UST Preferred Stock as to such
distribution, holders of UST 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 UST Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally with
UST 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 UST 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 UST 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
UST 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
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 UST 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 UST 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 UST 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 UST Preferred Stock will not be subject to any
mandatory redemption, sinking fund or other similar provisions. Holders of UST
Preferred Stock will have no right to require redemption or repurchase of any
shares of UST Preferred Stock.
(c) Notice of Redemption. Notice of every redemption of shares of UST
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 UST Preferred Stock designated for
redemption shall not affect the validity of the proceedings for the redemption
of any other shares of UST Preferred Stock. Notwithstanding the foregoing, if
shares of UST 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 UST 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 UST 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.
(d) Partial Redemption. In case of any redemption of part of the shares
of UST 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 UST 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 UST 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 UST Preferred Stock may be reissued only as shares of any
series of Preferred Stock other than UST Preferred Stock).
Section 6. Conversion. Holders of UST 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 UST 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 UST 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 UST 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 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 UST Preferred Stock have been declared and paid in full at
which time such right shall terminate with respect to the UST 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 UST
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 UST 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 UST 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 UST 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 UST 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 UST 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 UST Preferred Stock. Any amendment,
alteration or repeal of any provision of the Certificate of
Designations for the UST 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 UST Preferred
Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and
Consolidations. Any consummation of a binding share exchange or
reclassification involving the UST 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 UST 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 UST 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 UST 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 UST 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 UST Preferred Stock.
(d) Changes after Provision for Redemption. No vote or consent of the
holders of UST 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 UST 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 UST 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 UST 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 UST Preferred Stock
may deem and treat the record holder of any share of UST 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 UST
Preferred Stock shall be sufficiently given if given in writing and 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 UST
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 UST
Preferred Stock in any manner permitted by such facility.
Section 10. No Preemptive Rights. No share of UST 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 UST 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.
ANNEX B
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FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B
---------------------------------------------------------
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) "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.
(b) "Business Combination" means a merger, consolidation, statutory
share exchange or similar transaction that requires the approval of the
Corporation's stockholders.
(c) "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.
(d) "Bylaws" means the bylaws of the Corporation, as they may be
amended from time to time.
(e) "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.
(f) "Charter" means the Corporation's certificate or articles of
incorporation, articles of association, or similar organizational document.
(g) "Dividend Period" has the meaning set forth in Section 3(a).
(h) "Dividend Record Date" has the meaning set forth in Section 3(a).
(i) "Liquidation Preference" has the meaning set forth in Section 4(a).
(j) "Original Issue Date" means the date on which shares of Designated
Preferred Stock are first issued.
(k) "Preferred Director" has the meaning set forth in Section 7(b).
(l) "Preferred Stock" means any and all series of preferred stock of
the Corporation, including the Designated Preferred Stock.
(m) "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 November 17, 2008).
(n) "Standard Provisions" mean these Standard Provisions that form a
part of the Certificate of Designations relating to the Designated Preferred
Stock.
(o) "Successor Preferred Stock" has the meaning set forth in Section
5(a).
(p) "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 rate of 9.0% 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.
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 and consistent with past practice; (ii) the acquisition of 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 (iii) 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.
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
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 later of (i) first Dividend
Payment Date falling on or after the third anniversary of the Original Issue
Date; and (ii) the date on which all outstanding shares of UST Preferred Stock
have been redeemed, repurchased or otherwise acquired by the Corporation. 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
Corporation, at its option, subject to the approval of the Appropriate Federal
Banking Agency and subject to the requirement that all outstanding shares of UST
Preferred Stock shall previously have been redeemed, repurchased or otherwise
acquired by the Corporation, 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.
(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
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 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
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.