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8-K - FORM 8-K - WESTERN ALLIANCE BANCORPORATION | c22795e8vk.htm |
EX-10.2 - EXHIBIT 10.2 - WESTERN ALLIANCE BANCORPORATION | c22795exv10w2.htm |
EX-10.1 - EXHIBIT 10.1 - WESTERN ALLIANCE BANCORPORATION | c22795exv10w1.htm |
EX-99.1 - EXHIBIT 99.1 - WESTERN ALLIANCE BANCORPORATION | c22795exv99w1.htm |
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
NON-CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B
OF
WESTERN ALLIANCE BANCORPORATION
OF
NON-CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B
OF
WESTERN ALLIANCE BANCORPORATION
Western Alliance Bancorporation, a corporation organized and existing under the laws of the
State of Nevada (the Issuer), in accordance with the provisions of Section 78.1955 of the
Nevada Revised Statutes, does hereby certify:
The board of directors of the Issuer (the Board of Directors) or an applicable
committee of the Board of Directors, in accordance with the certificate of incorporation and bylaws
of the Issuer and applicable law, adopted the following resolution on September 23, 2011 creating a
series of 141,000 shares of Preferred Stock of the Issuer designated as Non-Cumulative
Perpetual Preferred Stock, Series B.
RESOLVED, that pursuant to the provisions of the certificate of incorporation and the bylaws
of the Issuer and applicable law, a series of Preferred Stock, par value $0.0001 per share, of the
Issuer be and hereby is created, and that the designation and number of shares of such series, and
the voting and other powers, preferences and relative, participating, optional or other rights, and
the qualifications, limitations and restrictions thereof, of the shares of such series, are as
follows:
Part 1. Designation and Number of Shares. There is hereby created out of the
authorized and unissued shares of preferred stock of the Issuer a series of preferred stock
designated as the Non-Cumulative Perpetual Preferred Stock, Series B (the Designated
Preferred Stock). The authorized number of shares of Designated Preferred Stock shall be
141,000.
Part 2. Standard Provisions. The Standard Provisions contained in Schedule A
attached hereto are incorporated herein by reference in their entirety and shall be deemed to be a
part of this Certificate of Designation to the same extent as if such provisions had been set forth
in full herein.
Part 3. Definitions. The following terms are used in this Certificate of Designation
(including the Standard Provisions in Schedule A hereto) as defined below:
(a) Common Stock means the common stock, par value $.0001 per share, of the Issuer.
(b) Definitive Agreement means that certain Securities Purchase Agreement by and
between Issuer and Treasury, dated as of the Signing Date.
(c) Junior Stock means the Common Stock and any other class or series of stock of
the Issuer the terms of which expressly provide that it ranks junior to Designated Preferred Stock
as to dividend and redemption rights and/or as to rights on liquidation, dissolution or winding up
of the Issuer.
SBLF Participant No. 0069
(d) Liquidation Amount means $1,000 per share of Designated Preferred Stock.
(e) Minimum Amount means (i) the amount equal to twenty-five percent (25%) of the
aggregate Liquidation Amount of Designated Preferred Stock issued on the Original Issue Date or
(ii) all of the outstanding Designated Preferred Stock, if the aggregate liquidation preference of
the outstanding Designated Preferred Stock is less than the amount set forth in the preceding
clause (i).
(f) Parity Stock means any class or series of stock of the Issuer (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 Issuer (in each case without regard to whether
dividends accrue cumulatively or non-cumulatively). Without limiting the foregoing, Parity Stock
shall include the Issuers Fixed Rate Cumulative Perpetual Preferred Stock, Series A.
(g) Signing Date means September 27, 2011.
(h) Treasury means the United States Department of the Treasury and any successor in
interest thereto.
Part 4. Certain Voting Matters. Holders of shares of Designated Preferred Stock will
be entitled to one vote for each such share on any matter on which holders of Designated Preferred
Stock are entitled to vote, including any action by written consent.
[Remainder of Page Intentionally Left Blank]
SBLF Participant No. 0069 | -2- |
IN WITNESS WHEREOF, Western Alliance Bancorporation has caused this Certificate of Designation
to be signed by Robert G. Sarver, its Chairman and Chief Executive Officer, this 23rd day of
September, 2011.
WESTERN ALLIANCE BANCORPORATION |
||||
By: | /s/ Robert G. Sarver | |||
Name: | Robert G. Sarver | |||
Title: | Chairman and Chief Executive Officer | |||
SBLF Participant No. 0069
Schedule A
STANDARD PROVISIONS
Section 1. General Matters. Each share of Designated Preferred Stock shall be
identical in all respects to every other share of Designated Preferred Stock. The Designated
Preferred Stock shall be perpetual, subject to the provisions of Section 5 of these Standard
Provisions that form a part of the Certificate of Designation. 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 Issuer, as set forth below.
Section 2. Standard Definitions. As used herein with respect to Designated Preferred
Stock:
(a) Acquiror, in any Holding Company Transaction, means the surviving or resulting
entity or its ultimate parent in the case of a merger or consolidation or the transferee in the
case of a sale, lease or other transfer in one transaction or a series of related transactions of
all or substantially all of the consolidated assets of the Issuer and its subsidiaries, taken as a
whole.
(b) Affiliate means, with respect to any person, any person directly or indirectly
controlling, controlled by or under common control with, such other person. For purposes of this
definition, control (including, with correlative meanings, the terms controlled
by and under common control with) when used with respect to any person, means the
possession, directly or indirectly through one or more intermediaries, of the power to cause the
direction of management and/or policies of such person, whether through the ownership of voting
securities by contract or otherwise.
(c) Applicable Dividend Rate has the meaning set forth in Section 3(a).
(d) Appropriate Federal Banking Agency means the appropriate Federal banking
agency with respect to the Issuer as defined in Section 3(q) of the Federal Deposit Insurance Act
(12 U.S.C. Section 1813(q)), or any successor provision.
(e) Bank Holding Company means a company registered as such with the Board of
Governors of the Federal Reserve System pursuant to 12 U.S.C. §1842 and the regulations of the
Board of Governors of the Federal Reserve System thereunder.
(f) Baseline means the Initial Small Business Lending Baseline set forth on the
Initial Supplemental Report (as defined in the Definitive Agreement), subject to adjustment
pursuant to Section 3(a).
(g) Business Combination means a merger, consolidation, statutory share exchange or
similar transaction that requires the approval of the Issuers stockholders.
SBLF Participant No. 0069 | A-1 |
(h) Business Day means any day except Saturday, Sunday and any day on which banking
institutions in the State of New York or the District of Columbia generally are authorized or
required by law or other governmental actions to close.
(i) Bylaws means the bylaws of the Issuer, as they may be amended from time to time.
(j) Call Report has the meaning set forth in the Definitive Agreement.
(k) Certificate of Designation means the Certificate of Designation 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.
(l) Charge-Offs means the net amount of loans charged off by the Issuer or, if the
Issuer is a Bank Holding Company or a Savings and Loan Holding Company, by the IDI Subsidiary(ies)
during quarters that begin on or after the Signing Date, determined as follows:
(i) if the Issuer or the applicable IDI Subsidiary is a bank, by subtracting (A) the
aggregate dollar amount of recoveries reflected on line RIAD4605 of its Call Reports for
such quarters from (B) the aggregate dollar amount of charge-offs reflected on line RIAD4635
of its Call Reports for such quarters (without duplication as a result of such dollar
amounts being reported on a year-to-date basis); or
(ii) if the Issuer or the applicable IDI Subsidiary is a thrift, by subtracting (A) the
sum of the aggregate dollar amount of recoveries reflected on line VA140 of its Call Reports
for such quarters and the aggregate dollar amount of adjustments reflected on line VA150 of
its Call Reports for such quarters from (B) the aggregate dollar amount of charge-offs
reflected on line VA160 of its Call Reports for such quarters.
(m) Charter means the Issuers certificate or articles of incorporation, articles of
association, or similar organizational document.
(n) CPP Lending Incentive Fee has the meaning set forth in Section 3(e).
(o) Current Period has the meaning set forth in Section 3(a)(i)(2).
(p) Dividend Payment Date means January 1, April 1, July 1, and October 1 of each
year.
(q) Dividend Period means the period from and including any Dividend Payment Date
to, but excluding, the next Dividend Payment Date; provided, however, the initial Dividend Period
shall be the period from and including the Original Issue Date to, but excluding, the next Dividend
Payment Date (the Initial Dividend Period).
(r) Dividend Record Date has the meaning set forth in Section 3(b).
SBLF Participant No. 0069 | A-2 |
(s) Dividend Reference Period has the meaning set forth in Section 3(a)(i)(2).
(t) GAAP means generally accepted accounting principles in the United States.
(u) Holding Company Preferred Stock has the meaning set forth in Section 7(c)(v).
(v) Holding Company Transaction means the occurrence of (a) any transaction
(including, without limitation, any acquisition, merger or consolidation) the result of which is
that a person or group within the meaning of Section 13(d) of the Securities Exchange Act of
1934, as amended, (i) becomes the direct or indirect ultimate beneficial owner, as defined in
Rule 13d-3 under that Act, of common equity of the Issuer representing more than 50% of the voting
power of the outstanding Common Stock or (ii) is otherwise required to consolidate the Issuer for
purposes of generally accepted accounting principles in the United States, or (b) any consolidation
or merger of the Issuer or similar transaction or any sale, lease or other transfer in one
transaction or a series of related transactions of all or substantially all of the consolidated
assets of the Issuer and its subsidiaries, taken as a whole, to any Person other than one of the
Issuers subsidiaries; provided that, in the case of either clause (a) or (b), the Issuer or the
Acquiror is or becomes a Bank Holding Company or Savings and Loan Holding Company.
(w) IDI Subsidiary means any Issuer Subsidiary that is an insured depository
institution.
(x) Increase in QSBL means:
(i) with respect to the first (1st) Dividend Period, the difference obtained by
subtracting (A) the Baseline from (B) QSBL set forth in the Initial Supplemental Report (as
defined in the Definitive Agreement); and
(ii) with respect to each subsequent Dividend Period, the difference obtained by
subtracting (A) the Baseline from (B) QSBL for the Dividend Reference Period for the Current
Period.
(y) Initial Dividend Period has the meaning set forth in the definition of Dividend
Period.
(z) Issuer Subsidiary means any subsidiary of the Issuer.
(aa) Liquidation Preference has the meaning set forth in Section 4(a).
(bb) Non-Qualifying Portion Percentage means, with respect to any particular
Dividend Period, the percentage obtained by subtracting the Qualifying Portion Percentage from one
(1).
SBLF Participant No. 0069 | A-3 |
(cc) Original Issue Date means the date on which shares of Designated Preferred
Stock are first issued.
(dd) Percentage Change in QSBL has the meaning set forth in Section 3(a)(ii).
(ee) Person means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company or trust.
(ff) Preferred Director has the meaning set forth in Section 7(c).
(gg) Preferred Stock means any and all series of preferred stock of the Issuer,
including the Designated Preferred Stock.
(hh) Previously Acquired Preferred Shares has the meaning set forth in the
Definitive Agreement.
(ii) Private Capital means, if the Issuer is Matching Private Investment Supported
(as defined in the Definitive Agreement), the equity capital received by the Issuer or the
applicable Affiliate of the Issuer from one or more non-governmental investors in accordance with
Section 1.3(m) of the Definitive Agreement.
(jj) Publicly-traded means a company that (i) has a class of securities that is
traded on a national securities exchange and (ii) is required to file periodic reports with either
the Securities and Exchange Commission or its primary federal bank regulator.
(kk) Qualified Small Business Lending or QSBL means, with respect to any
particular Dividend Period, the Quarter-End Adjusted Qualified Small Business Lending for such
Dividend Period set forth in the applicable Supplemental Report.
(ll) Qualifying Portion Percentage means, with respect to any particular Dividend
Period, the percentage obtained by dividing (i) the Increase in QSBL for such Dividend Period by
(ii) the aggregate Liquidation Amount of then-outstanding Designated Preferred Stock.
(mm) Savings and Loan Holding Company means a company registered as such with the
Office of Thrift Supervision pursuant to 12 U.S.C. §1467a(b) and the regulations of the Office of
Thrift Supervision promulgated thereunder.
(nn) Share Dilution Amount means the increase in the number of diluted shares
outstanding (determined in accordance with GAAP applied on a consistent basis, and as measured from
the date of the Issuers most recent consolidated financial statements prior to the Signing Date)
resulting from the grant, vesting or exercise of equity-based compensation to employees and
equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or
similar transaction.
(oo) Signing Date Tier 1 Capital Amount means $489,383,720.
SBLF Participant No. 0069 | A-4 |
(pp) Standard Provisions mean these Standard Provisions that form a part of the
Certificate of Designation relating to the Designated Preferred Stock.
(qq) Supplemental Report means a Supplemental Report delivered by the Issuer to
Treasury pursuant to the Definitive Agreement.
(rr) Tier 1 Dividend Threshold means, as of any particular date, the result of the
following formula:
(
( A + B C ) * 0.9 ) D
where:
A | = | Signing Date Tier 1 Capital Amount; |
|
B | = | the aggregate Liquidation Amount of the
Designated Preferred Stock issued to Treasury; |
|
C | = | the aggregate amount of Charge-Offs since
the Signing Date; and |
|
D | = | (i) beginning on the first day of the
eleventh (11th) Dividend Period, the amount equal to ten percent (10%)
of the aggregate Liquidation Amount of the Designated Preferred Stock
issued to Treasury as of the Effective Date (without regard to any
redemptions of Designated Preferred Stock that may have occurred
thereafter) for every one percent (1%) of positive Percentage Change
in Qualified Small Business Lending between the ninth (9th) Dividend
Period and the Baseline; and |
(ii) zero (0) at all other times.
(ss) 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 Section 7(d) of these Standard
Provisions that form a part of the Certificate of Designation, 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.
(i) The Applicable Dividend Rate shall be determined as follows:
(1) | With respect to the Initial
Dividend Period, the Applicable Dividend Rate shall be
3.8742411%. |
SBLF Participant No. 0069 | A-5 |
(2) | With respect to each of the
second (2nd) through the tenth (10th) Dividend Periods,
inclusive (in each case, the Current Period), the
Applicable Dividend Rate shall be: |
(A) (x) the applicable rate set forth in column A of the table
in Section 3(a)(iii), based on the Percentage Change in QSBL between
the Dividend Period that was two Dividend Periods prior to the
Current Period (the Dividend Reference Period) and the
Baseline, multiplied by (y) the Qualifying Portion Percentage; plus
(B) (x) five percent (5%) multiplied by (y) the Non-Qualifying
Portion Percentage.
In each such case, the Applicable Dividend Rate shall be determined
at the time the Issuer delivers a complete and accurate Supplemental
Report to Treasury with respect to the Dividend Reference Period.
(3) | With respect to the eleventh
(11th) through the eighteenth (18th) Dividend Periods,
inclusive, and that portion of the nineteenth (19th) Dividend
Period prior to, but not including, the four and one half (41/2)
year anniversary of the Original Issue Date, the Applicable
Dividend Rate shall be: |
(A) (x) the applicable rate set forth in column B of the table
in Section 3(a)(iii), based on the Percentage Change in QSBL between
the ninth (9th) Dividend Period and the Baseline, multiplied by (y)
the Qualifying Portion Percentage, calculated as of the last day of
the ninth (9th) Dividend Period; plus
(B) (x) five percent (5%) multiplied by (y) the Non-Qualifying
Portion Percentage, calculated as of the last day of the ninth (9th)
Dividend Period.
In such case, the Applicable Dividend Rate shall be determined at the
time the Issuer delivers a complete and accurate Supplemental Report
to Treasury with respect to the ninth (9th) Dividend Period.
(4) | With respect to (A) that portion
of the nineteenth (19th) Dividend Period beginning on the four
and one half (41/2) year anniversary of the Original Issue Date
and (B) all Dividend Periods thereafter, the Applicable Dividend
Rate shall be nine percent (9%). |
(5) | Notwithstanding anything herein
to the contrary, if the Issuer fails to submit a Supplemental
Report that is due during any of the second (2nd) through tenth
(10th)
Dividend Periods on or before the sixtieth (60th) day of such
Dividend Period, the Issuers QSBL for the Dividend Period
that would have been covered by such Supplemental Report
shall be zero (0) for purposes hereof. |
SBLF Participant No. 0069 | A-6 |
(6) | Notwithstanding anything herein
to the contrary, but subject to Section 3(a)(i)(5) above, if the
Issuer fails to submit the Supplemental Report that is due
during the tenth (10th) Dividend Period, the Issuers QSBL shall
be zero (0) for purposes of calculating the Applicable Dividend
Rate pursuant to Section 3(a)(i)(3) and (4). The Applicable
Dividend Rate shall be re-determined effective as of the first
day of the calendar quarter following the date such failure is
remedied, provided it is remedied prior to the four and one half
(41/2) anniversary of the Original Issue Date. |
(7) | Notwithstanding anything herein
to the contrary, if the Issuer fails to submit any of the
certificates required by Sections 3.1(d)(ii) or 3.1(d)(iii) of
the Definitive Agreement when and as required thereby, the
Issuers QSBL shall be zero (0) for purposes of calculating the
Applicable Dividend Rate pursuant to Section 3(a)(i)(2) or (3)
above until such failure is remedied. |
(ii) The Percentage Change in Qualified Lending between any given Dividend
Period and the Baseline shall be the result of the following formula, expressed as a
percentage:
(iii) The following table shall be used for determining the Applicable Dividend Rate:
The Applicable Dividend Rate shall be: | ||||||||
Column B | ||||||||
Column A | (11th 18th, and | |||||||
(each of the | the first part of the | |||||||
If the Percentage Change in | 2nd 10th | 19th, Dividend | ||||||
Qualified Lending is: | Dividend Periods) | Periods) | ||||||
0% or less |
5 | % | 7 | % | ||||
More than 0%, but less than
2.5% |
5 | % | 5 | % | ||||
2.5% or more, but less than 5% |
4 | % | 4 | % | ||||
5% or more, but less than 7.5% |
3 | % | 3 | % | ||||
7.5% or more, but less than 10% |
2 | % | 2 | % | ||||
10% or more |
1 | % | 1 | % |
SBLF Participant No. 0069 | A-7 |
(iv) If the Issuer consummates a Business Combination, a purchase of loans or a
purchase of participations in loans and the Designated Preferred Stock remains outstanding
thereafter, then the Baseline shall thereafter be the Quarter-End Adjusted Small Business
Lending Baseline set forth on the Quarterly Supplemental Report (as defined in the
Definitive Agreement).
(b) Payment. 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, non-cumulative cash dividends with respect to:
(i) each Dividend Period (other than the Initial Dividend Period) at a rate equal to
one-fourth (1/4) of the Applicable Dividend Rate with respect to each Dividend Period on the
Liquidation Amount per share of Designated Preferred Stock, and no more, payable quarterly
in arrears on each Dividend Payment Date; and
(ii) the Initial Dividend Period, on the first such Dividend Payment Date to occur at
least twenty (20) calendar days after the Original Issue Date, an amount equal to (A) the
Applicable Dividend Rate with respect to the Initial Dividend Period multiplied by (B) the
number of days from the Original Issue Date to the last day of the Initial Dividend Period
(inclusive) divided by 360.
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. For
avoidance of doubt, payable quarterly in arrears means that, with respect to any particular
Dividend Period, dividends begin accruing on the first day of such Dividend Period and are payable
on the first day of the next Dividend Period.
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 four 90-day quarters, and actual days elapsed over a 90-day quarter.
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 Issuer 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.
SBLF Participant No. 0069 | A-8 |
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 Designation).
(c) Non-Cumulative. Dividends on shares of Designated Preferred Stock shall be
non-cumulative. If the Board of Directors or any duly authorized committee of the Board of
Directors does not declare a dividend on the Designated Preferred Stock in respect of any Dividend
Period:
(i) the holders of Designated Preferred Stock shall have no right to receive any
dividend for such Dividend Period, and the Issuer shall have no obligation to pay a dividend
for such Dividend Period, whether or not dividends are declared for any subsequent Dividend
Period with respect to the Designated Preferred Stock; and
(ii) the Issuer shall, within five (5) calendar days, deliver to the holders of the
Designated Preferred Stock a written notice executed by the Chief Executive Officer and the
Chief Financial Officer of the Issuer stating the Board of Directors rationale for not
declaring dividends.
(d) Priority of Dividends; Restrictions on Dividends.
(i) Subject to Sections 3(d)(ii), (iii) and (v) and any restrictions imposed by the
Appropriate Federal Banking Agency or, if applicable, the Issuers state bank supervisor (as
defined in Section 3(r) of the Federal Deposit Insurance Act (12 U.S.C. § 1813(q)), so long
as any share of Designated Preferred Stock remains outstanding, the Issuer may declare and
pay dividends on the Common Stock, any other shares of Junior Stock, or Parity Stock, in
each case only if (A) after giving effect to such dividend the Issuers Tier 1 capital would
be at least equal to the Tier 1 Dividend Threshold, and (B) full dividends on all
outstanding shares of Designated Preferred Stock for the most recently completed Dividend
Period have been or are contemporaneously declared and paid.
(ii) If a dividend is not declared and paid in full on the Designated Preferred Stock
in respect of any Dividend Period, then from the last day of such Dividend Period until the
last day of the third (3rd) Dividend Period immediately following it, 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;
provided, however, that in any such Dividend Period in which a dividend is declared and paid
on the Designated Preferred Stock, dividends may be paid on Parity Stock to the extent
necessary to avoid any material breach of a covenant by which the Issuer is bound.
(iii) When dividends have not been declared and paid in full for an aggregate of four
(4) Dividend Periods or more, and during such time the Issuer was not subject to a
regulatory determination that prohibits the declaration and payment of dividends, the Issuer
shall, within five (5) calendar days of each missed payment, deliver to the holders of the
Designated Preferred Stock a certificate executed by at least a majority of the Board of
Directors stating that the Board of Directors used its best efforts
to declare and pay such dividends in a manner consistent with (A) safe and sound
banking practices and (B) the directors fiduciary obligations.
SBLF Participant No. 0069 | A-9 |
(iv) Subject to the foregoing and Section 3(e) below 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.
(v) If the Issuer is not Publicly-Traded, then after the tenth (10th) anniversary of
the Signing Date, 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.
(e) Special Lending Incentive Fee Related to CPP. If Treasury held Previously
Acquired Preferred Shares immediately prior to the Original Issue Date and the Issuer did not apply
to Treasury to redeem such Previously Acquired Preferred Shares prior to December 16, 2010, and if
the Issuers Supplemental Report with respect to the ninth (9th) Dividend Period reflects an amount
of Qualified Small Business Lending that is less than or equal to the Baseline (or if the Issuer
fails to timely file a Supplemental Report with respect to the ninth (9th) Dividend Period), then
beginning on January 1, 2014 and on all Dividend Payment Dates thereafter ending on April 1, 2016,
the Issuer shall pay to the Holders of Designated Preferred Stock, on each share of Designated
Preferred Stock, but only out of assets legally available therefor, a fee equal to 0.5% of the
Liquidation Amount per share of Designated Preferred Stock (CPP Lending Incentive Fee).
All references in Section 3(d) to dividends on the Designated Preferred Stock shall be deemed to
include the CPP Lending Incentive Fee.
Section 4. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation,
dissolution or winding up of the affairs of the Issuer, 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 Issuer or proceeds thereof (whether capital or surplus) available
for distribution to stockholders of the Issuer, subject to the rights of any creditors of the
Issuer, 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 Issuer 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 on each such share (such amounts
collectively, the Liquidation Preference).
(b) Partial Payment. If in any distribution described in Section 4(a) above the
assets of the Issuer 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 Issuer 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.
SBLF Participant No. 0069 | A-10 |
(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 Issuer ranking equally with Designated Preferred Stock as to such distribution
has been paid in full, the holders of other stock of the Issuer shall be entitled to receive all
remaining assets of the Issuer (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Is Not Liquidation. For purposes of this
Section 4, the merger or consolidation of the Issuer 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 Issuer, shall not
constitute a liquidation, dissolution or winding up of the Issuer.
Section 5. Redemption.
(a) Optional Redemption.
(i) Subject to the other provisions of this Section 5:
(1) | The Issuer, 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;
and |
(2) | If, after the Signing Date, there
is a change in law that modifies the terms of Treasurys
investment in the Designated Preferred Stock or the terms of
Treasurys Small Business Lending Fund program in a materially
adverse respect for the Issuer, the Issuer may, after
consultation with the Appropriate Federal Banking Agency, redeem
all of the shares of Designated Preferred Stock at the time
outstanding. |
(ii) The per-share redemption price for shares of Designated Preferred Stock shall be
equal to the sum of:
(1) | the Liquidation Amount per share, |
(2) | the per-share amount of any
unpaid dividends for the then current Dividend Period at the
Applicable Dividend Rate to, but excluding, the date fixed for
redemption (regardless of whether any dividends are actually
declared for that Dividend Period; and |
(3) | the pro rata amount of CPP
Lending Incentive Fees for the current Dividend Period. |
SBLF Participant No. 0069 | A-11 |
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 Issuer or its agent. Any declared but unpaid dividends for the then current
Dividend Period 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 Issuer. 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, but in any event the shares to be redeemed shall not be less
than the Minimum Amount. 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,
subject to the approval of the Appropriate Federal Banking Agency. 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.
SBLF Participant No. 0069 | A-12 |
(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 Issuer, 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
Issuer, after which time the holders of the shares so called for redemption shall look only to the
Issuer 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 Issuer 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) Board Observation Rights. Whenever, at any time or times, dividends on the shares
of Designated Preferred Stock have not been declared and paid in full within five (5) Business Days
after each Dividend Payment Date for an aggregate of five (5) Dividend Periods or more, whether or
not consecutive, the Issuer shall invite a representative selected by the holders of a majority of
the outstanding shares of Designated Preferred Stock, voting as a single class, to attend all
meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall
give such representative copies of all notices, minutes, consents, and other materials that it
provides to its directors in connection with such meetings; provided, that the holders of the
Designated Preferred Stock shall not be obligated to select such a representative, nor shall such
representative, if selected, be obligated to attend any meeting to which he/she is invited. The
rights of the holders of the Designated Preferred Stock set forth in this Section 7(b) shall
terminate when full dividends have been timely paid on the Designated Preferred Stock for at least
four consecutive Dividend Periods, subject to revesting in the event of each and every subsequent
default of the character above mentioned.
SBLF Participant No. 0069 | A-13 |
(c) Preferred Stock Directors. Whenever, at any time or times, (i) dividends on the
shares of Designated Preferred Stock have not been declared and paid in full within five
(5) Business Days after each Dividend Payment Date for an aggregate of six (6) Dividend
Periods or more, whether or not consecutive, and (ii) the aggregate liquidation preference of the
then-outstanding shares of Designated Preferred Stock is greater than or equal to $25,000,000, the
authorized number of directors of the Issuer shall automatically be increased by two and the
holders of the Designated Preferred Stock, voting as a single class, shall have the right, but not
the obligation, to elect two directors (hereinafter the Preferred Directors and each a
Preferred Director) to fill such newly created directorships at the Issuers next annual
meeting of stockholders (or, if the next annual meeting is not yet scheduled or is scheduled to
occur more than thirty days later, the President of the Company shall promptly call a special
meeting for that purpose) and at each subsequent annual meeting of stockholders until full
dividends have been timely paid on the Designated Preferred Stock for at least four consecutive
Dividend Periods, 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 Issuer to violate any corporate governance requirements of any securities
exchange or other trading facility on which securities of the Issuer 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 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. If
the office of any Preferred Director becomes vacant for any reason other than removal from office
as aforesaid, the holders of a majority of the outstanding shares of Designated Preferred Stock,
voting as a single class, may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(d) 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 written consent of (x) Treasury if Treasury holds any shares of
Designated Preferred Stock, or (y) the holders of a majority of the outstanding shares of
Designated Preferred Stock, voting as a single class, if Treasury does not hold any shares of
Designated Preferred Stock, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the
Certificate of Designation 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 Issuer 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 Issuer;
SBLF Participant No. 0069 | A-14 |
(ii) Amendment of Designated Preferred Stock. Any amendment, alteration or
repeal of any provision of the Certificate of Designation for the Designated
Preferred Stock or the Charter (including, unless no vote on such merger or
consolidation is required by Section 7(d)(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;
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Subject
to Section 7(d)(v) below, any consummation of a binding share exchange or reclassification
involving the Designated Preferred Stock, or of a merger or consolidation of the Issuer 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 Issuer 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 that are the same as 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, that in all cases, the
obligations of the Issuer are assumed (by operation of law or by express written assumption)
by the resulting entity or its ultimate parent;
(iv) Certain Asset Sales. Any sale of all, substantially all, or any material
portion of, the assets of the Company, if the Designated Preferred Stock will not be
redeemed in full contemporaneously with the consummation of such sale; and
(v) Holding Company Transactions. Any consummation of a Holding Company
Transaction, unless as a result of the Holding Company Transaction each share of Designated
Preferred Stock shall be converted into or exchanged for one share with an equal liquidation
preference of preference securities of the Issuer or the Acquiror (the Holding Company
Preferred Stock). Any such Holding Company Preferred Stock shall entitle holders
thereof to dividends from the date of issuance of such Holding Company Preferred Stock on
terms that are equivalent to the terms set forth herein, and shall have such other rights,
preferences, privileges and voting powers, and limitations and restrictions thereof that are
the same as the rights, preferences, privileges and voting powers, and limitations and
restrictions thereof, of Designated Preferred Stock immediately prior to such conversion or
exchange, taken as a whole;
provided, however, that for all purposes of this Section 7(d), 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 Issuer 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 Issuer 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.
SBLF Participant No. 0069 | A-15 |
(e) Changes after Provision for Redemption. No vote or consent of the holders of
Designated Preferred Stock shall be required pursuant to Section 7(d) 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.
(f) 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. Restriction on Redemptions and Repurchases.
(a) Subject to Sections 8(b) and (c), so long as any share of Designated Preferred Stock
remains outstanding, the Issuer may repurchase or redeem any shares of Capital Stock (as defined
below), in each case only if (i) after giving effect to such dividend, repurchase or redemption,
the Issuers Tier 1 capital would be at least equal to the Tier 1 Dividend Threshold and (ii)
dividends on all outstanding shares of Designated Preferred Stock for the most recently completed
Dividend Period have been or are contemporaneously declared and paid (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).
(b) If a dividend is not declared and paid on the Designated Preferred Stock in respect of any
Dividend Period, then from the last day of such Dividend Period until the last day of the third
(3rd) Dividend Period immediately following it, neither the Issuer nor any Issuer Subsidiary shall,
redeem, purchase or acquire any shares of Common Stock, Junior Stock, Parity Stock or other capital
stock or other equity securities of any kind of the Issuer or any Issuer Subsidiary, or any trust
preferred securities issued by the Issuer or any Affiliate of the Issuer (Capital Stock), (other
than (i) redemptions, purchases, repurchases or other acquisitions of the Designated Preferred
Stock and (ii) repurchases of Junior Stock or Common Stock in connection with the administration of
any employee benefit plan in the ordinary course of business (including purchases to offset any
Share Dilution Amount pursuant to a publicly announced repurchase plan) and consistent with past
practice; provided that any purchases to offset the Share Dilution Amount shall in no event exceed
the Share Dilution Amount, (iii) the acquisition by the Issuer or any of the Issuer Subsidiaries of
record ownership in Junior Stock or Parity Stock for the beneficial ownership of any other persons
(other than the Issuer or any other Issuer Subsidiary), including as trustees or custodians, (iv)
the exchange or conversion of Junior Stock for or into other Junior Stock or
SBLF Participant No. 0069 | A-16 |
of Parity Stock or
trust preferred securities for or into other Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, in each
case set forth in this clause (iv), 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, (v) redemptions of securities held by
the Issuer or any wholly-owned Issuer Subsidiary or (vi) redemptions, purchases or other
acquisitions of capital stock or other equity securities of any kind of any Issuer Subsidiary
required pursuant to binding contractual agreements entered into prior to (x) if Treasury held
Previously Acquired Preferred Shares immediately prior to the Original Issue Date, the original
issue date of such Previously Acquired Preferred Shares, or (y) otherwise, the Signing Date).
(c) If the Issuer is not Publicly-Traded, then after the tenth (10th) anniversary of the
Signing Date, so long as any share of Designated Preferred Stock remains outstanding, no Common
Stock, Junior Stock or Parity Stock shall be, directly or indirectly, purchased, redeemed or
otherwise acquired for consideration by the Issuer or any of its subsidiaries.
Section 9. No Preemptive Rights. No share of Designated Preferred Stock shall have
any rights of preemption whatsoever as to any securities of the Issuer, 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 10. References to Line Items of Supplemental Reports. If Treasury modifies
the form of Supplemental Report, pursuant to its rights under the Definitive Agreement, and any
such modification includes a change to the caption or number of any line item on the Supplemental
Report, then any reference herein to such line item shall thereafter be a reference to such
re-captioned or re-numbered line item.
Section 11. Record Holders. To the fullest extent permitted by applicable law, the
Issuer 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 Issuer nor such transfer agent shall be affected by any notice to the contrary.
Section 12. 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 Designation, 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.
SBLF Participant No. 0069 | A-17 |
Section 13. Replacement Certificates. The Issuer shall replace any mutilated
certificate at the holders expense upon surrender of that certificate to the Issuer. The Issuer
shall replace certificates that become destroyed, stolen or lost at the holders expense upon
delivery to the Issuer of reasonably satisfactory evidence that the certificate has been destroyed,
stolen or lost, together with any indemnity that may be reasonably required by the Issuer.
Section 14. 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.
SBLF Participant No. 0069 | A-18 |