Attached files
file | filename |
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10-K - FORM 10-K - WASHINGTON BANKING CO | v55197e10vk.htm |
EX-24 - EX-24 - WASHINGTON BANKING CO | v55197exv24.htm |
EX-21 - EX-21 - WASHINGTON BANKING CO | v55197exv21.htm |
EX-99.2 - EX-99.2 - WASHINGTON BANKING CO | v55197exv99w2.htm |
EX-12.1 - EX-12.1 - WASHINGTON BANKING CO | v55197exv12w1.htm |
EX-99.1 - EX-99.1 - WASHINGTON BANKING CO | v55197exv99w1.htm |
EX-31.2 - EX-31.2 - WASHINGTON BANKING CO | v55197exv31w2.htm |
EX-32.2 - EX-32.2 - WASHINGTON BANKING CO | v55197exv32w2.htm |
EX-23.1 - EX-23.1 - WASHINGTON BANKING CO | v55197exv23w1.htm |
EX-31.1 - EX-31.1 - WASHINGTON BANKING CO | v55197exv31w1.htm |
EX-32.1 - EX-32.1 - WASHINGTON BANKING CO | v55197exv32w1.htm |
Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WASHINGTON BANKING COMPANY
ARTICLES OF INCORPORATION
OF
WASHINGTON BANKING COMPANY
ARTICLE I
NAME
NAME
The name of this corporation is WASHINGTON BANKING COMPANY.
ARTICLE II
MAIN OFFICE LOCATION
MAIN OFFICE LOCATION
The office and place of business of this corporation shall be in Oak Harbor, Island County,
State of Washington.
ARTICLE III
CAPITALIZATION
CAPITALIZATION
The aggregate number of shares which the corporation is authorized to issue is thirty-five
million (35,000,000) common shares with no par value per share, and twenty-six thousand three
hundred eighty (26,380) preferred shares with no par value.
ARTICLE IV
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 4.1 The Board of Directors shall consist of not fewer than five (5) nor more
than twelve (12) individuals. The exact number shall be determined by resolution of the Board of
Directors. The number of directors elected by the shareholders at the last preceding annual meeting
may be increased by not more than two (2) directors by the Board between annual meetings of the
shareholders, and no decrease in the number of directors shall have the effect of shortening the
term of any incumbent director.
Section 4.2 Commencing with the 1996 Annual Meeting of Shareholders, the Board of
Directors shall be divided into three classes: Class 1, Class 2, and Class 3, which shall be as
nearly equal in number as possible. Each director shall serve for a term ending on the date of the
third annual meeting of shareholders following the annual meeting at which such director was
elected; provided, however, that each initial director in Class 1 shall hold office until the
annual meeting of shareholders in 1997; each initial director in Class 2 shall hold office until
the annual meeting of shareholders in 1998; and each initial director in Class 3 shall hold office
until the annual meeting of shareholders in 1999; and in each case until their successors are duly
elected and have qualified or until their earlier resignation, removal from office or death.
Section 4.3 No director may be removed from office without cause except by a vote of
66-2/3% of the shares then entitled to vote at an election of directors. Except as otherwise
provided by law, cause for removal shall exist only if the Board of Directors has reasonable
grounds to believe that the corporation has suffered or will suffer substantial injury as a result
of the gross negligence or dishonesty of the director whose removal is proposed.
ARTICLE V
SHAREHOLDER RIGHTS
SHAREHOLDER RIGHTS
Section 5.1 The shareholders of the corporation do not have preemptive rights to
acquire proportional amounts of the corporations unissued shares upon the decision of the Board of
Directors to issue them.
Section 5.2 The shareholders of the corporation do not have cumulative voting rights
with respect to the election of Directors of the corporation.
ARTICLE VI
DIRECTOR LIABILITY
DIRECTOR LIABILITY
Section 6.1 Defined Terms As used in this Article:
(a) The term Egregious Conduct by a person shall mean acts or omissions that involve
intentional misconduct or a knowing violation of law, conduct violating section 23B.08.310 as
amended of the Revised Code of Washington, or participation in any transaction from which the
person will personally receive a benefit in money, property, or services to which the person is not
legally entitled.
(b) The term finally adjudged shall mean stated in a judgment based upon clear and
convincing evidence by a court having jurisdiction, from which there is no further right to appeal.
(c) The term Director shall mean any person who is a director of the corporation and any
person who, while a director of the corporation, is serving at the request of the corporation as a
director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise, or is a fiduciary or party in interest in
relation to any employee benefit plan covering any employee of the corporation or of any employer
in which it has an ownership interest; and conduct as a Director shall include conduct while a
Director is acting in any of such capacities.
(d) The term Officer-Director shall mean any person who is simultaneously both an officer
and director of the corporation and any person who, while simultaneously both an officer and
director of the corporation, is serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint
venture, trust, or other enterprise, or is a fiduciary or party in interest in relation to any
employee benefit plan covering any employee of the corporation or of any employer in which it has
an ownership interest; and conduct as an Officer-Director shall include conduct while such a
person is acting as an officer of the corporation or in any of such other capacities.
(e) The term Subsidiary Corporation shall mean any corporation at least eighty percent of
the voting stock of which is held beneficially by this corporation.
(f) The term Subsidiary Outside Director shall mean any person who, while not principally
employed by this corporation or any Subsidiary Corporation, is a director of a Subsidiary
Corporation and any such person who, while a director of a Subsidiary Corporation, is serving at
the request of such corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, or
is a fiduciary or party in interest in relation to any employee benefit plan covering any employee
of such corporation or of any employer in which it has an ownership interest; and conduct as a
subsidiary Outside Director shall include conduct while such a person is acting in any of such
capacities.
Section 6.2 Director Standard of Care. No Director, Officer-Director, former
Director or former Officer-Director shall be personally liable to the corporation or its
shareholders for monetary damages for conduct as a Director or Officer-Director occurring after the
effective date of this Article unless the conduct is finally adjudged to have been Egregious
Conduct.
Section 6.3 Subsidiary Director Standard of Care. No Subsidiary Outside Director or
former Subsidiary Outside Director shall be personally liable in any action brought directly by
this corporation as a shareholder of the Subsidiary Corporation or derivatively on behalf of the
Subsidiary Corporation (or by any shareholder of this corporation double-derivatively on behalf of
this corporation and the Subsidiary Corporation) for monetary damages for conduct as a Subsidiary
Outside Director occurring after the effective date of this Article unless the conduct is finally
adjudged to have been Egregious Conduct.
Section 6.4 Mandatory Indemnification of Directors. Subject to Sections 6.7 and 6.8
of this Article, the corporation shall indemnify any person who is, or is threatened to be made, a
party to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, and whether by or in the right of the corporation or its
shareholders or by any
other party, by reason of the fact that the person is or was a Director, Officer-Director, or
Subsidiary Outside Director against judgments, penalties or penalty taxes, fines, settlements (even
if paid or payable
to the corporation or its shareholders or to a Subsidiary Corporation) and reasonable
expenses, including attorneys fees, actually incurred in connection with such proceeding unless
the liability and expenses were on account of conduct finally adjudged to be Egregious Conduct.
Section 6.5 Advancing Expenses. The reasonable expenses, including attorneys fees,
of a Director, Officer-Director or Subsidiary Outside Director incurred in connection with a
proceeding in which the individual is entitled to indemnification under Section 4 shall be paid or
reimbursed by the corporation, upon request of such person, in advance of the final disposition of
such proceeding upon receipt by the corporation of a written, unsecured promise by the person to
repay such amount if it shall be finally adjudged that the person is not eligible for
indemnification. All expenses incurred by such person in connection with such proceeding shall be
considered reasonable unless finally adjudged to be unreasonable.
Section 6.6 Procedure. Except as required by Sections 6.7 and 6.8 of this Article,
no action by the board of directors, the shareholders, independent counsel, or any other person or
persons shall be necessary or appropriate to the determination of the corporations indemnification
obligation in any specific case, to the determination of the reasonableness of any expenses
incurred by a person entitled to indemnification under this Article, nor to the authorization of
indemnification in any specific case.
Section 6.7 Exception for Internal Claims. Notwithstanding anything else in these
Articles, the corporation shall not be obligated to indemnify any person for any expenses,
including attorneys fees, incurred to assert any claim against the corporation (except a claim to
enforce indemnification) or any person related to or associated with it, including any person who
would be entitled hereby to indemnification in connection with the claim.
Section 6.8 Regulatory Proceedings. The corporation may provide indemnification and
advancement of expenses in connection with administrative proceedings or civil actions instituted
by a federal banking agency (Regulatory Proceedings), except to the extent prohibited by
applicable banking regulations. Any procedures for obtaining indemnification in Regulatory
Proceedings shall be consistent with the requirements of such banking regulations.
Section 6.9 Enforcement Procedure. If a claim under Section 6.4 of this Article is
not paid in full by the corporation within sixty (60) days after a written claim has been received
by the corporation, except in the case of a claim for expenses incurred in defending a proceeding
in advance of its final disposition, in which case the applicable period shall be twenty (20) days,
the claimant may at any time thereafter bring suit against the corporation to recover the unpaid
amount of the claim and, to the extent successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. The claimant shall be presumed to
be entitled to indemnification under this Article upon submission of a written claim (and, in an
action brought to enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition, where the required undertaking has been tendered to the corporation), and
thereafter the corporation shall have the burden of proving that the claimant is not so entitled.
Except in an action brought by a federal banking agency, the claimant is entitled to
indemnification even if the corporation (including its Board of Directors, independent legal
counsel or its shareholders) failed to determine prior to the commencement of such action that
indemnification or reimbursement or advancement of expenses to the claimant is proper in the
circumstances or even if the corporation (including its Board of Directors, independent legal
counsel or its shareholders) actually determined that the claimant is not entitled to
indemnification or to the reimbursement or advancement of expenses.
Section 6.10 Enforcement of Rights. The corporation shall indemnify any person
granted indemnification rights under this Article against any reasonable expenses incurred by the
person to enforce such rights.
Section 6.11 Set-off of Claims. Any person granted indemnification rights herein may
directly assert such rights in set-off of any claim raised against the person by or in the right of
the corporation and shall be entitled to have the same tribunal which adjudicates the corporations
claim adjudicate the persons entitlement to indemnification by the corporation.
Section 6.12 Non-Exclusive Remedy. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition conferred by this
Article shall not be exclusive of any
other right that any person may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, Bylaws, agreement, vote of shareholders or disinterested directors or
otherwise.
Section 6.13 Insurance. The corporation may maintain insurance, at its expense, to
protect itself and any director, trustee, officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the corporation would have the power to indemnify such person against such
expense, liability or loss under the Washington Business Corporation Act, as amended from time to
time. The corporation may, without further shareholder action, enter into contracts with any
Director or Officer-Director of the corporation in furtherance of the provisions of this Article
and may create a trust fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article. The proceeds of an insurance policy or bond may not be
used to pay or reimburse the cost of any judgment or civil money penalty (except for legal and
professional expenses) assessed in an administrative proceeding or civil action instituted by any
federal banking agency.
Section 6.14 Employees, Officers and Agents. The corporation may, by action of its
Board of Directors from time to time, provide indemnification and pay expenses in advance of the
final disposition of a proceeding to officers, employees and agents of the corporation with the
same scope and effect as the provisions of this Article with respect to the indemnification and
advancement of expenses of Directors and Officer-Directors of the corporation, or pursuant to
rights granted pursuant to, or provided by, the Washington Business Corporation Act, as amended
from time to time, or otherwise.
Section 6.15 Continuation of Rights. The indemnification rights provided in this
Article shall continue as to a person who has ceased to be a Director, Officer-Director, or
Subsidiary Outside Director and shall inure to the benefit of the heirs, executors, and
administrators of such person.
Section 6.16 Effect of Amendment or Repeal. Any amendment or repeal of this Article
shall not adversely affect any right or protection of a Director, Officer-Director, or Subsidiary
Outside Director or person formerly serving in any of such capacities existing at the time of such
amendment or repeal with respect to acts or omissions occurring prior to such amendment or repeal.
Section 6.17 Severability of Provisions. Each of the substantive provisions of this
Article is separate and independent of the others, so that if any provision hereof shall be held to
be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect
the validity or enforceability of the other provisions.
ARTICLE VII
FAIR PRICE PROVISION
FAIR PRICE PROVISION
Section 7.1 For purposes of this Article:
(a) An interested shareholder transaction means any transaction between a corporation, or any
subsidiary thereof, and an interested shareholder of such corporation or an affiliated person to an
interested shareholder, that must be authorized pursuant to applicable law by a vote of the
shareholders.
(b) An interested shareholder:
(1) Includes any person or group of affiliated persons who beneficially own twenty
percent or more of the outstanding voting shares of a corporation. An affiliated person is
any person who either acts jointly or in concert with, or directly or indirectly controls,
is controlled by, or is under common control with another person; and
(2) Excludes any person who, in good faith and not for the purpose of circumventing
this Article, is an agent, custodial bank, broker, nominee, or trustee for another person,
if such other person is not an interested shareholder under Section 7.1(b)(1) of this
Article.
Section 7.2 Except as provided in Section 7.3 of this Article, an interested
shareholder transaction must be approved by the affirmative vote of the holders of two-thirds of
the shares entitled to be counted under this Section
7.2, or if any class of shares is entitled to vote thereon as a class, then by the affirmative
vote of two-thirds of the shares of each class entitled to be counted under this Section 7.2 and of
the total shares entitled to be counted under this Section 7.2. All outstanding shares entitled to
vote under applicable law or the Articles of Incorporation shall be entitled to be counted under
this Section 7.2, except shares owned by or voted under the control of an interested shareholder
may not be counted to determine whether shareholders have approved a transaction for purposes of
this Section 7.2. The vote of the shares owned by or voted under the control of an interested
shareholder, however, shall be counted in determining whether a transaction is approved under other
provisions of applicable law and for purposes of determining a quorum.
Section 7.3 This Article shall not apply to a transaction:
(a) Approved by a majority vote of the Board of Directors. For such purpose, the vote of
directors whose votes are otherwise entitled to be counted under the Articles of Incorporation and
applicable law who are directors or officers of, or have a material financial interest in, an
interested shareholder, or who were nominated for election as a director as a result of an
arrangement with an interested shareholder and first elected as a director within twenty-four
months of the proposed transaction, shall not be counted in determining whether the transaction is
approved by such directors; or
(b) In which a majority of directors whose votes are entitled to be counted under Section
7.3(a) determines that the fair market value of the consideration to be received by noninterested
shareholders for shares of any class of which shares are owned by any interested shareholder is not
less than the highest fair market value of the consideration paid by any interested shareholder in
acquiring shares of the same class within twenty-four months of the proposed transaction.
Section 7.4 This Article may be amended or repealed only by the affirmative vote of
the holders of two-thirds of the shares entitled to be counted under this Section 7.4. All
outstanding shares entitled to vote under applicable law or the Articles of Incorporation shall be
entitled to be counted under this Section 7.4, except shares owned by or voted under the control of
an interested shareholder may not be counted to determine whether shareholders have voted to
approve the amendment or repeal. The vote of the shares owned by or voted under the control of an
interested shareholder, however, shall be counted in determining whether the amendment or repeal is
approved under other provisions of applicable law and for purposes of determining a quorum.
Section 7.5 The requirements imposed by this Article are to be in addition to, and not
in lieu of, requirements imposed on any transaction by any provision of applicable law, or any
other provision of the Articles of Incorporation, or the Bylaws or otherwise.
ARTICLE VIII
CONSIDERATION OF NON-MONETARY FACTORS
CONSIDERATION OF NON-MONETARY FACTORS
The Board of Directors of this corporation, when evaluating any offer of another party to (a)
make a tender or exchange offer for any equity security of this corporation, (b) merge or
consolidate this corporation with another corporation, or (c) purchase or otherwise acquire all or
substantially all of the properties and assets of this corporation, shall, in connection with the
exercise of its judgment in determining what is in the best interests of this corporation and its
stockholders, give due consideration to all relevant factors, including without limitation the
social and economic effects on the employees, customers, suppliers and other constituents of this
corporation and its subsidiaries and on the communities in which this corporation and its
subsidiaries operate or are located.
ARTICLE IX
AMENDMENTS TO ARTICLES
AMENDMENTS TO ARTICLES
Section 9.1 The corporation reserves the right to amend, alter, change or repeal any
provision of its Articles of Incorporation to the extent permitted by the laws of the State of
Washington. All rights of shareholders are granted subject to this reservation.
Section 9.2 The Board of Directors shall have full power to adopt, alter, amend or
repeal the Bylaws of the corporation or to adopt new Bylaws. Nothing herein, however, shall deny
the concurrent power of the shareholders to adopt, alter, amend or repeal the Bylaws.
ARTICLE X
BOARD OF DIRECTORS
BOARD OF DIRECTORS
The initial Directors of the corporation and their addresses are as follows:
NAME | ADDRESS | |
Michal D. Cann
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
Orland D. Dean
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
F. Merrick Dunn
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
Karl C. Krieg
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
Jay T. Lien
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
Robert J. Nelson
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
Robert Olson
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 | ||
Edward J. Wallgren
|
9021 90th N.W. | |
P.O. Box 990 | ||
Oak Harbor, WA 98277 |
ARTICLE XI
REGISTERED AGENT AND OFFICE
REGISTERED AGENT AND OFFICE
The name and street address of the initial registered agent of the corporation are G & D,
Inc., 1420 Fifth Avenue, Suite 3300, Seattle, Washington 98101-2390.
ARTICLE XII
INCORPORATOR
INCORPORATOR
The name and address of the incorporator of the corporation are Stephen M. Klein, Graham &
Dunn, 1420 Fifth Avenue, Suite 3300, Seattle, Washington 98101-2390.
DESIGNATION
Part 1. Designation and Number of Shares. There is hereby created out of the
authorized and unissued shares of preferred stock of the Corporation a series of preferred stock
designated as the Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the Designated Preferred Stock). The
authorized number of shares of Designated Preferred Stock shall be 26,380. The Designated Preferred
Stock shall have no par value per share.
Part 2. Standard Provisions. The Standard Provisions contained in Annex A attached
hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of
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 Designation (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 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 $6,595,000.
(f) Parity Stock means any class or series of stock of the Corporation (other than
Designated Preferred Stock) the terms of which do not expressly provide that such class or series
will rank senior or junior to Designated Preferred Stock as to dividend rights and/or as to rights
on liquidation, dissolution or winding up of the Corporation (in each case without regard to
whether dividends accrue cumulatively or non-cumulatively).
(g) Signing Date means January, 16, 2009.
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.
ANNEX A
STANDARD PROVISIONS
Section 1. General Matters. Each share of Designated Preferred Stock shall be
identical in all respects to every other share of Designated Preferred Stock. The Designated
Preferred Stock shall be perpetual, subject to the provisions of Section 5 of these Standard
Provisions that form a part of the Certificate of Designations. The Designated Preferred Stock
shall rank equally with Parity Stock and shall rank senior to Junior Stock with respect to the
payment of dividends and the distribution of assets in the event of any dissolution, liquidation or
winding up of the Corporation.
Section 2. Standard Definitions. As used herein with respect to Designated Preferred
Stock:
(a) Applicable Dividend Rate means (i) during the period from the Original Issue
Date to, but excluding, the first day of the first Dividend Period commencing on or after the fifth
anniversary of the Original Issue Date, 5% per annum and (ii) from and after the first day of the
first Dividend Period commencing on or after the fifth anniversary of the Original Issue Date, 9%
per annum.
(b) Appropriate Federal Banking Agency means the appropriate Federal banking
agency with respect to the Corporation as defined in Section 3(q) of the Federal Deposit Insurance
Act (12 U.S. Section 1813(q)), or any successor provision.
(c) Business Combination means a merger, consolidation, statutory share exchange
similar transaction that requires the approval of the Corporations stockholders.
(d) Business Day means any day except Saturday, Sunday and any day on which banking
institutions in the State of New York generally are authorized or required by law or other
governmental actions to close.
(e) Bylaws means the bylaws of the Corporation, as they may be amended from time to
time.
(f) Certificate of Designations means the Certificate of Designations or comparable
instrument relating to the Designated Preferred Stock, of which these Standard Provisions form a
part, it may be amended from time to time.
(g) Charter means the Corporations certificate or articles of incorporation,
articles 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 Designated Preferred Stock
are first issued.
(l) Preferred Director has the meaning set forth in Section 7(b).
(m) Preferred Stock means any and all series of preferred stock of the Corporation,
including the Designated Preferred Stock.
(n) Qualified Equity Offering means the sale and issuance for cash by the
Corporation to persons other than the Corporation or any of its subsidiaries after the Original
Issue Date of shares of perpetual Preferred Stock, Common Stock or any combination of such stock,
that, in each case, qualify as and may be included in Tier 1 capital of the Corporation at the time
of issuance under the applicable risk-based capital guidelines of the Corporations Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant to agreements or
arrangements entered into, or pursuant to financing plans which were publicly announced, on or
prior to October 13, 2008).
(o) Share Dilution Amount has the meaning set forth in Section 3(b).
(p) Standard Provisions mean these Standard Provisions that form a part of the
Certificate of Designations relating to the Designated Preferred Stock.
(q) Successor Preferred Stock has the meaning set forth in Section 5(a).
(r) Voting Parity Stock means, with regard to any matter as to which the holders of
Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and 7(b) of these
Standard Provisions that form a part of the Certificate of Designations, any and all series of
Parity Stock upon which like voting rights have been conferred and are exercisable with respect to
such matter.
Section 3. Dividends.
(a) Rate. Holders of Designated Preferred Stock shall be entitled to receive, on each
share of Designated Preferred Stock if, as and when declared by the Board of Directors or any duly
authorized committee of the Board of Directors, but only out of assets legally available therefor,
cumulative cash dividends with respect to each Dividend Period (as defined below) at a rate per
annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount per share of Designated
Preferred Stock and (ii) the amount of accrued and unpaid dividends for any prior Dividend Period
on such share of Designated Preferred Stock, if any. Such dividends shall begin to accrue and be
cumulative from the Original Issue Date, shall compound on each subsequent Dividend Payment Date
(i.e., no dividends shall accrue on other dividends unless and until the first Dividend Payment
Date for such other dividends has passed without such other dividends having been paid on such
date) and shall be payable quarterly in arrears on each Dividend Payment Date, commencing with the
first such Dividend Payment Date to occur at least 20 calendar days after the Original Issue Date.
In the event that any Dividend Payment Date would otherwise fall on a day that is not a Business
Day, the dividend payment due on that date will be postponed to the next day that is a Business Day
and no additional dividends will accrue as a result of that postponement. The period from and
including any Dividend Payment Date to, but excluding, the next Dividend Payment Date is a
Dividend Period, provided that the initial Dividend Period shall be the period from and
including the Original Issue Date to, but excluding, the next Dividend Payment Date.
Dividends that are payable on Designated Preferred Stock in respect of any Dividend Period
shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of
dividends payable on Designated Preferred Stock on any date prior to the end of a Dividend Period,
and for the initial Dividend Period, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months, and actual days elapsed over a 30-day month.
Dividends that are payable on Designated Preferred Stock on any Dividend Payment Date will be
payable to holders of record of Designated Preferred Stock as they appear on the stock register of
the Corporation on the applicable record date, which shall be the 15th calendar day immediately
preceding such Dividend Payment Date or such other record date fixed by the Board of Directors or
any duly authorized committee of the Board of Directors that is not more than 60 nor less than 10
days prior to such Dividend Payment Date (each, a Dividend Record Date). Any such day
that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a
Business Day.
Holders of Designated Preferred Stock shall not be entitled to any dividends, whether payable
in cash, securities or other property, other than dividends (if any) declared and payable on
Designated Preferred Stock as specified in this Section 3 (subject to the other provisions of the
Certificate of Designations).
(b) Priority of Dividends. So long as any share of Designated Preferred Stock remains
outstanding, no dividend or distribution shall be declared or paid on the Common Stock or any other
shares of Junior Stock (other than dividends payable solely in shares of Common Stock) or Parity
Stock, subject to the immediately following paragraph in the case of Parity Stock, and no Common
Stock, Junior Stock or Parity Stock shall be, directly or
indirectly, purchased, redeemed or
otherwise acquired for consideration by the Corporation or any of its subsidiaries unless all
accrued and unpaid dividends for all past Dividend Periods, including the latest completed Dividend
Period (including, if applicable as provided in Section 3(a) above, dividends on such amount), on
all outstanding
shares of Designated Preferred Stock have been or are contemporaneously declared and paid in
full (or have been declared and a sum sufficient for the payment thereof has been set aside for the
benefit of the holders of shares of Designated Preferred Stock on the applicable record date). The
foregoing limitation shall not apply to (i) redemptions, purchases or other acquisitions of shares
of Common Stock or other Junior Stock in connection with the administration of any employee benefit
plan in the ordinary course of business (including purchases to offset the Share Dilution Amount
(as defined below) pursuant to a publicly announced repurchase plan) and consistent with past
practice, provided that any purchases to offset the Share Dilution Amount shall in no event exceed
the Share Dilution Amount; (ii) purchases or other acquisitions by a broker-dealer subsidiary of
the Corporation solely for the purpose of market-making, stabilization or customer facilitation
transactions in Junior Stock or Parity Stock in the ordinary course of its business; (iii)
purchases by a broker-dealer subsidiary of the Corporation of capital stock of the Corporation for
resale pursuant to an offering by the Corporation of such capital stock underwritten by such
broker-dealer subsidiary; (iv) any dividends or distributions of rights or Junior Stock in
connection with a stockholders rights plan or any redemption or repurchase of rights pursuant to
any stockholders rights plan; (v) the acquisition by the Corporation or any of its subsidiaries of
record ownership in Junior Stock or Parity Stock for the beneficial ownership of any other persons
(other than the Corporation or any of its subsidiaries), including as trustees or custodians; and
(vi) the exchange or conversion of Junior Stock for or into other Junior Stock or of Parity Stock
for or into other Parity Stock (with the same or lesser aggregate liquidation amount) or Junior
Stock, in each case, solely to the extent required pursuant to binding contractual agreements
entered into prior to the Signing Date or any subsequent agreement for the accelerated exercise,
settlement or exchange thereof for Common Stock. Share Dilution Amount means the increase in the
number of diluted shares outstanding (determined in accordance with generally accepted accounting
principles in the United States, and as measured from the date of the Corporations consolidated
financial statements most recently filed with the Securities and Exchange Commission prior to the
Original Issue Date) resulting from the grant, vesting or exercise of equity-based compensation to
employees and equitably adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside
for the benefit of the holders thereof on the applicable record date) on any Dividend Payment Date
(or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment
Dates, on a dividend payment date falling within a Dividend Period related to such Dividend Payment
Date) in full upon Designated Preferred Stock and any shares of Parity Stock, all dividends
declared on Designated Preferred Stock and all such Parity Stock and payable on such Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to
such Dividend Payment Date) shall be declared pro rata so that the respective amounts of such
dividends declared shall bear the same ratio to each other as all accrued and unpaid dividends per
share on the shares of Designated Preferred Stock (including, if applicable as provided in Section
3(a) above, dividends on such amount) and all Parity Stock payable on such Dividend Payment Date
(or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment
Dates, on a dividend payment date falling within the Dividend Period related to such Dividend
Payment Date) (subject to their having been declared by the Board of Directors or a duly authorized
committee of the Board of Directors out of legally available funds and including, in the case of
Parity Stock that bears cumulative dividends, all accrued but unpaid dividends) bear to each other.
If the Board of Directors or a duly authorized committee of the Board of Directors determines not
to pay any dividend or a full dividend on a Dividend Payment Date, the Corporation will provide
written notice to the holders of Designated Preferred Stock prior to such Dividend Payment Date.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, securities or
other property) as may be determined by the Board of Directors or any duly authorized committee of
the Board of Directors may be declared and paid on any securities, including Common Stock and other
Junior Stock, from time to time out of any funds legally available for such payment, and holders of
Designated Preferred Stock shall not be entitled to participate in any such dividends.
Section 4. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of
Designated Preferred Stock shall be entitled
to receive for each share of Designated Preferred Stock, out of the assets of the Corporation
or proceeds thereof (whether capital or surplus) available for distribution to stockholders of the
Corporation, subject to the rights of any creditors of the Corporation, before any distribution of
such assets or proceeds is made to or set aside for the holders of Common Stock and any other stock
of the Corporation ranking junior to Designated Preferred Stock as to such distribution, payment in
full in an amount equal to the sum of (i) the Liquidation Amount per share and (ii) the amount of
any accrued and unpaid dividends (including, if applicable as provided in Section 3(a) above,
dividends on such amount), whether or not declared, to the date of payment (such amounts
collectively, the Liquidation Preference).
(b) Partial Payment. If in any distribution described in Section 4(a) above the assets
of the Corporation or proceeds thereof are not sufficient to pay in full the amounts payable with
respect to all outstanding shares of Designated Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally with Designated
Preferred Stock as to such distribution, holders of Designated Preferred Stock and the holders of
such other stock shall share ratably in any such distribution in proportion to the full respective
distributions to which they are entitled.
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Designated Preferred Stock and the corresponding amounts payable with respect of any
other stock of the Corporation ranking equally with Designated Preferred Stock as to such
distribution has been paid in full, the holders of other stock of the Corporation shall be entitled
to receive all remaining assets of the Corporation (or proceeds thereof) according to their
respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this
Section 4, the merger or consolidation of the Corporation with any other corporation or other
entity, including a merger or consolidation in which the holders of Designated Preferred Stock
receive cash, securities or other property for their shares, or the sale, lease or exchange (for
cash, securities or other property) of all or substantially all of the assets of the Corporation,
shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 5. Redemption.
(a) Optional Redemption. Except as provided below, the Designated Preferred Stock may
not be redeemed prior to the first Dividend Payment Date falling on or after the third anniversary
of the Original Issue Date. On or after the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any time
and from time to time, out of funds legally available therefor, the shares of Designated Preferred
Stock at the time outstanding, upon notice given as provided in Section 5(c) below, at a redemption
price equal to the sum of (i) the Liquidation Amount per share and (ii) except as otherwise
provided below, any accrued and unpaid dividends (including, if applicable as provided in Section
3(a) above, dividends on such amount) (regardless of whether any dividends are actually declared)
to, but excluding, the date fixed for redemption.
Notwithstanding the foregoing, prior to the first Dividend Payment Date falling on or after
the third anniversary of the Original Issue Date, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any time
and from time to time, the shares of Designated Preferred Stock at the time outstanding, upon
notice given as provided in Section 5(c) below, at a redemption price equal to the sum of (i) the
Liquidation Amount per share and (ii) except as otherwise provided below, any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above, dividends on such amount)
(regardless of whether any dividends are actually declared) to, but excluding, the date fixed for
redemption; provided that (x) the Corporation (or any successor by Business Combination) has
received aggregate gross proceeds of not less than the Minimum Amount (plus the Minimum Amount as
defined in the relevant certificate of designations for each other outstanding series of preferred
stock of such successor that was originally issued to the United States Department of the Treasury
(the Successor Preferred Stock) in connection with the Troubled Asset Relief Program
Capital Purchase Program) from one or more Qualified Equity Offerings (including
Qualified Equity
Offerings of such successor), and (y) the aggregate redemption price of the Designated Preferred
Stock (and any Successor Preferred Stock) redeemed pursuant to this paragraph may not exceed the
aggregate net cash proceeds received by the Corporation (or any successor by Business Combination)
from such Qualified Equity Offerings (including Qualified Equity Offerings of such successor).
The redemption price for any shares of Designated Preferred Stock shall be payable on the
redemption date to the holder of such shares against surrender of the certificate(s) evidencing
such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a
redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not
be paid to the holder entitled to receive the redemption price on the redemption date, but rather
shall be paid to the holder of record of the redeemed shares on such Dividend Record Date relating
to the Dividend Payment Date as provided in Section 3 above.
(b) No Sinking Fund. The Designated Preferred Stock will not be subject to any
mandatory redemption, sinking fund or other similar provisions. Holders of Designated Preferred
Stock will have no right to require redemption or repurchase of any shares of Designated Preferred
Stock.
(c) Notice of Redemption. Notice of every redemption of shares of Designated Preferred
Stock shall be given by first class mail, postage prepaid, addressed to the holders of record of
the shares to be redeemed at their respective last addresses appearing on the books of the
Corporation. Such mailing shall be at least 30 days and not more than 60 days before the date fixed
for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice, but failure duly to give such
notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of
Designated Preferred Stock designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Designated Preferred Stock. Notwithstanding
the foregoing, if shares of Designated Preferred Stock are issued in book-entry form through The
Depository Trust Company or any other similar facility, notice of redemption may be given to the
holders of Designated Preferred Stock at such time and in any manner permitted by such facility.
Each notice of redemption given to a holder shall state: (1) the redemption date; (2) the number of
shares of Designated Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the
redemption price; and (4) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price.
(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 Corporations 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 holders expense upon surrender of that certificate to the Corporation. The
Corporation shall replace certificates that become destroyed, stolen or lost at the holders
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.