ANNEX A 

FORM OF [CERTIFICATE OF DESIGNATIONS] 

OF 

FIXED RATE NON-CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES [●] 

OF 

[●] 

[Insert name of Corporation], a [corporation] organized and existing under the laws of 

the [Insert jurisdiction of organization] (the “Corporation”), in accordance with the provisions 

of Section[s] [●] of the [Insert applicable statute] thereof, does hereby certify: 

The board of directors of the Corporation (the “Board of Directors”) or an applicable 

committee of the Board of Directors, in accordance with the [certificate of incorporation and 

bylaws] of the Corporation and applicable law, adopted the following resolution on [●] creating 

a series of [●] shares of Preferred Stock of the Corporation designated as “Fixed Rate NonCumulative Perpetual Preferred Stock, Series [●]”. 

RESOLVED, that pursuant to the provisions of the [certificate of incorporation and the 

bylaws] of the Corporation and applicable law, a series of Preferred Stock, par value $[●] per 

share, of the Corporation 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 Corporation a series of preferred stock designated 

as the “Fixed Rate Non-Cumulative Perpetual Preferred Stock, Series [●]” (the “Designated 

Preferred Stock”). The authorized number of shares of Designated Preferred Stock shall be [●]. 

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 Designations] 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 Designations]

(including the Standard Provisions in Schedule A hereto) as defined below: 

(a) “Common Stock” means the common stock, 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, [Insert titles of any existing Junior 

Stock] and any other class or series of stock of the Corporation the terms of which expressly 

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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]

1

 per share of Designated Preferred Stock. 

(e) “Minimum Amount” means $[Insert $ amount equal to 25% of the aggregate 

value of the Designated Preferred Stock issued on the Original Issue Date]. 

(f) “Parity Stock” means any class or series of stock of the Corporation (other than 

Designated Preferred Stock) the terms of which do not expressly provide that such class or series 

will rank senior or junior to Designated Preferred Stock as to dividend rights and/or as to rights 

on liquidation, dissolution or winding up of the Corporation (in each case without regard to 

whether dividends accrue cumulatively or non-cumulatively). Without limiting the foregoing, 

Parity Stock shall include the Corporation’s [Insert title(s) of existing classes or series of Parity 

Stock]. 

(g) “Signing Date” means [Insert date of applicable securities purchase agreement]. 

Part. 4. Certain Voting Matters. [To be inserted if the Charter provides for voting in 

proportion to liquidation preferences: Whether the vote or consent of the holders of a plurality, 

majority or other portion of the shares of Designated Preferred Stock and any Voting Parity 

Stock has been cast or given on any matter on which the holders of shares of Designated 

Preferred Stock are entitled to vote shall be determined by the Corporation by reference to the 

specified liquidation amount of the shares voted or covered by the consent as if the Corporation 

were liquidated on the record date for such vote or consent, if any, or, in the absence of a record 

date, on the date for such vote or consent. For purposes of determining the voting rights of the 

holders of Designated Preferred Stock under Section 7 of the Standard Provisions forming part of 

this [Certificate of Designations], each holder will be entitled to one vote for each $1,000 of 

liquidation preference to which such holder’s shares are entitled.] [To be inserted if the Charter 

does not provide for voting in proportion to liquidation preferences: 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] 

 

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 If issuer desires to issue shares with a higher dollar amount liquidation preference, liquidation preference 

references will be modified accordingly. In such case (in accordance with Section 4.7 of the Securities 

Purchase Agreement), the issuer will be required to enter into a deposit agreement. 

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IN WITNESS WHEREOF, [Insert name of Corporation] has caused this [Certificate of 

Designations] to be signed by [●], its [●], this [●] day of [●]. 

[Insert name of Corporation] 

By: _____________________ 

Name: 

Title:
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 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) “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 Corporation and its subsidiaries, taken as 

a whole. 

(b) “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. 

(c) “Appropriate Federal Banking Agency” means the “appropriate Federal banking 

agency” with respect to the Corporation as defined in Section 3(q) of the Federal Deposit 

Insurance Act (12 U.S.C. Section 1813(q)), or any successor provision. 

(d) “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.

(e) “Business Combination” means a merger, consolidation, statutory share exchange 

or similar transaction that requires the approval of the Corporation’s stockholders. 

(f) “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. 

(g) “Bylaws” means the bylaws of the Corporation, as they may be amended from 

time to time. 

(h) “Certificate of Designations” means the Certificate of Designations or comparable 

instrument relating to the Designated Preferred Stock, of which these Standard Provisions form a 

part, as it may be amended from time to time. 

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(i) “Charter” means the Corporation’s certificate or articles of incorporation, articles 

of association, or similar organizational document. 

(j) “Dividend Period” has the meaning set forth in Section 3(a). 

(k) “Dividend Record Date” has the meaning set forth in Section 3(a). 

(l) “Holding Company Preferred Stock” has the meaning set forth in Section 7(c)(iv). 

(m) “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 Corporation representing more than 50% of 

the voting power of the outstanding Common Stock or (ii) is otherwise required to consolidate 

the Corporation for purposes of generally accepted accounting principles in the United States, or 

(b) any consolidation or merger of the Corporation 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 Corporation and its subsidiaries, taken as a whole, to any Person other 

than one of the Corporation’s subsidiaries; provided that, in the case of either clause (a) or (b), 

the Corporation or the Acquiror is or becomes a Bank Holding Company or Savings and Loan 

Holding Company. 

(n) “Liquidation Preference” has the meaning set forth in Section 4(a). 

(o) “Original Issue Date” means the date on which shares of Designated Preferred 

Stock are first issued. 

(p) “Person” means a legal person, including any individual, corporation, estate, 

partnership, joint venture, association, joint-stock company, limited liability company or trust. 

(q) “Preferred Director” has the meaning set forth in Section 7(b). 

(r) “Preferred Stock” means any and all series of preferred stock of the Corporation, 

including the Designated Preferred Stock. 

(s) “Qualified Equity Offering” means the sale and issuance for cash by the 

Corporation to persons other than the Corporation or any of its subsidiaries after the Original 

Issue Date of shares of perpetual Preferred Stock, Common Stock or any combination of such 

stock, that, in each case, qualify as and may be included in Tier 1 capital of the Corporation at 

the time of issuance under the applicable risk-based capital guidelines of the Corporation’s 

Appropriate Federal Banking Agency (other than any such sales and issuances made pursuant to 

agreements or arrangements entered into, or pursuant to financing plans which were publicly 

announced, on or prior to October 13, 2008).

(t) “Savings and Loan Holding Company” means a company registered as such with 

the Office of Thrift Supervision pursuant to 12 U.S.C. §1467(a) and the regulations of the Office 

of Thrift Supervision promulgated thereunder. 

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(u) “Share Dilution Amount” has the meaning set forth in Section 3(c). 

(v) “Standard Provisions” mean these Standard Provisions that form a part of the 

Certificate of Designations relating to the Designated Preferred Stock. 

(w) “Successor Preferred Stock” has the meaning set forth in Section 5(a). 

(x) “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, non-cumulative cash dividends with respect to each Dividend Period (as defined below) 

at a rate per annum equal to the Applicable Dividend Rate on the Liquidation Amount per share 

of Designated Preferred Stock, and no more, 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 

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on Designated Preferred Stock as specified in this Section 3 (subject to the other provisions of 

the Certificate of Designations). 

(b) 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, the holders of Designated Preferred Stock shall have no right to receive any 

dividend for such Dividend Period, and the Corporation 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. 

(c) 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 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 

(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 Corporation’s 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. 

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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 shall bear the same ratio to each other as all 

accrued but unpaid dividends per share on the Designated Preferred Stock 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 declared 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 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 

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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, the amount equal to any declared and unpaid dividends plus any 

dividends accrued but unpaid for the then current Dividend Period at the rate set forth in Section 

3(a) to, but excluding, the date fixed for redemption (regardless of whether any dividends are 

actually declared for that Dividend Period). 

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, an amount equal 

to any declared and unpaid dividends plus any dividends accrued but unpaid for the then current 

Dividend Period at the rate set forth in Section 3(a) to, but excluding, the date fixed for 

redemption (regardless of whether any dividends are actually declared for that Dividend Period); 

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 

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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 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 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. 

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(e) Effectiveness of Redemption. If notice of redemption has been duly given and if 

on or before the redemption date specified in the notice all funds necessary for the redemption 

have been deposited by the Corporation, in trust for the pro rata benefit of the holders of the 

shares called for redemption, with a bank or trust company doing business in the Borough of 

Manhattan, The City of New York, and having a capital and surplus of at least $500 million and 

selected by the Board of Directors, so as to be and continue to be available solely therefor, then, 

notwithstanding that any certificate for any share so called for redemption has not been 

surrendered for cancellation, on and after the redemption date dividends shall cease to accrue on 

all shares so called for redemption, all shares so called for redemption shall no longer be deemed 

outstanding and all rights with respect to such shares shall forthwith on such redemption date 

cease and terminate, except only the right of the holders thereof to receive the amount payable on 

such redemption from such bank or trust company, without interest. Any funds unclaimed at the 

end of three years from the redemption date shall, to the extent permitted by law, be released to 

the Corporation, after which time the holders of the shares so called for redemption shall look 

only to the Corporation for payment of the redemption price of such shares. 

(f) Status of Redeemed Shares. Shares of Designated Preferred Stock that are 

redeemed, repurchased or otherwise acquired by the Corporation shall revert to authorized but 

unissued shares of Preferred Stock (provided that any such cancelled shares of Designated 

Preferred Stock may be reissued only as shares of any series of Preferred Stock other than 

Designated Preferred Stock). 

Section 6. Conversion. Holders of Designated Preferred Stock shares shall have no right 

to exchange or convert such shares into any other securities. 

Section 7. Voting Rights. 

(a) General. The holders of Designated Preferred Stock shall not have any voting 

rights except as set forth below or as otherwise from time to time required by law. 

(b) Preferred Stock Directors. Whenever, at any time or times, dividends payable on 

the shares of Designated Preferred Stock have not been paid for an aggregate of six quarterly 

Dividend Periods or more, whether or not consecutive, the authorized number of directors of the 

Corporation shall automatically be increased by two and the holders of the Designated Preferred 

Stock shall have the right, with holders of shares of any one or more other classes or series of 

Voting Parity Stock outstanding at the time, voting together as a class, to elect two directors 

(hereinafter the “Preferred Directors” and each a “Preferred Director”) to fill such newly 

created directorships at the Corporation’s next annual meeting of stockholders (or at a special 

meeting called for that purpose prior to such next annual meeting) and at each subsequent annual 

meeting of stockholders until full dividends have been 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 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 

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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; 

(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Subject 

to Section 7(c)(iv) below, 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 

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095331-0002-11515-NY02.2694970.4
voting powers, and limitations and restrictions thereof, of Designated Preferred Stock 

immediately prior to such consummation, taken as a whole; or 

(iv) 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 Corporation or the Acquiror 

(the “Holding Company Preferred Stock”). Any such Holding Company Preferred Stock 

shall entitle holders thereof to cumulative dividends from the date of issuance of such 

Holding Company Preferred Stock at a rate per annum equal to the Applicable Dividend 

Rate on the amount of liquidation preference of such stock, and shall have such other 

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 conversion or exchange, 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. 

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Section 8. Record Holders. To the fullest extent permitted by applicable law, the 

Corporation and the transfer agent for Designated Preferred Stock may deem and treat the record 

holder of any share of Designated Preferred Stock as the true and lawful owner thereof for all 

purposes, and neither the Corporation nor such transfer agent shall be affected by any notice to 

the contrary. 

Section 9. Notices. All notices or communications in respect of Designated Preferred 

Stock shall be sufficiently given if given in writing and delivered in person or by first class mail, 

postage prepaid, or if given in such other manner as may be permitted in this Certificate of 

Designations, in the Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if 

shares of Designated Preferred Stock are issued in book-entry form through The Depository 

Trust Company or any similar facility, such notices may be given to the holders of Designated 

Preferred Stock in any manner permitted by such facility. 

Section 10. No Preemptive Rights. No share of Designated Preferred Stock shall have 

any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, 

rights or options issued or granted with respect thereto, regardless of how such securities, or such 

warrants, rights or options, may be designated, issued or granted. 

Section 11. Replacement Certificates. The Corporation shall replace any mutilated 

certificate at the holder’s expense upon surrender of that certificate to the Corporation. The 

Corporation shall replace certificates that become destroyed, stolen or lost at the holder’s 

expense upon delivery to the Corporation of reasonably satisfactory evidence that the certificate 

has been destroyed, stolen or lost, together with any indemnity that may be reasonably required 

by the Corporation. 

Section 12. Other Rights. The shares of Designated Preferred Stock shall not have any 

rights, preferences, privileges or voting powers or relative, participating, optional or other special 

rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the 

Charter or as provided by applicable law.