ANNEX B 

FORM OF [CERTIFICATE OF DESIGNATIONS] 

OF 

FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES [●] 

OF 

[●] 

[Insert name of Issuer], a [corporation/bank/banking association] organized and existing 

under the laws of the [Insert jurisdiction of organization] (the “Issuer”), in accordance with the 

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

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

of the Board of Directors, in accordance with the [[certificate of incorporation/articles of 

association] and bylaws] of the Issuer and applicable law, adopted the following resolution on 

[●] creating a series of [●] shares of Preferred Stock of the Issuer designated as “Fixed Rate 

Cumulative Perpetual Preferred Stock, Series [●]”. 

RESOLVED, that pursuant to the provisions of the [[certificate of incorporation/articles 

of association] and the bylaws] of the Issuer and applicable law, a series of Preferred Stock, par 

value $[●] per share, of the Issuer be and hereby is created, and that the designation and number 

of shares of such series, and the voting and other powers, preferences and relative, participating, 

optional or other rights, and the qualifications, limitations and restrictions thereof, of the shares 

of such series, are as follows: 

Part 1. Designation and Number of Shares. There is hereby created out of the authorized 

and unissued shares of preferred stock of the Issuer a series of preferred stock designated as the 

“Fixed Rate 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 

Issuer. 

(b) “Dividend Payment Date” means February 15, May 15, August 15 and November 

15 of each year. 

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

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

that it ranks junior to Designated Preferred Stock as to dividend rights and/or as to rights on 

liquidation, dissolution or winding up of the Issuer. 

(d) “Liquidation Amount” means $[1,000]

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 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 Issuer (other than 

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

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

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

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

Stock shall include the Issuer’s UST Preferred Stock [and] [Insert title(s) of any other classes or 

series of Parity Stock]. 

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

(h) “UST Preferred Stock” means the Issuer’s Fixed Rate Cumulative Perpetual 

Preferred Stock, Series [●]. 

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 Issuer by reference to the specified 

liquidation amount of the shares voted or covered by the consent as if the Issuer 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 4.6 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 Issuer] has caused this [Certificate of 

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

[Insert name of Issuer] 

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 

Issuer. 

Section 2. Standard Definitions. As used herein with respect to Designated Preferred 

Stock: 

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

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

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

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

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

(c) “Business Day” means any day except Saturday, Sunday and any day on which 

banking institutions in the State of New York generally are authorized or required by law or 

other governmental actions to close. 

(d) “Bylaws” means the bylaws of the Issuer, as they may be amended from time to 

time. 

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

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

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

(f) “Charter” means the Issuer’s certificate or articles of incorporation, articles of 

association, or similar organizational document. 

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

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

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

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

Stock are first issued. 

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

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

including the Designated Preferred Stock. 

(m) “Qualified Equity Offering” means the sale and issuance for cash by the Issuer to 

persons other than the Issuer 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 Issuer at the time of issuance under the 

applicable risk-based capital guidelines of the Issuer’s Appropriate Federal Banking Agency 

(other than any such sales and issuances made pursuant to agreements or arrangements entered 

into, or pursuant to financing plans which were publicly announced, on or prior to November 17, 

2008).

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

Certificate of Designations relating to the Designated Preferred Stock. 

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

(p) “Voting Parity Stock” means, with regard to any matter as to which the holders of 

Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and 7(b) of these 

Standard Provisions that form a part of the Certificate of Designations, any and all series of 

Parity Stock upon which like voting rights have been conferred and are exercisable with respect 

to such matter. 

Section 3. Dividends. 

(a) Rate. Holders of Designated Preferred Stock shall be entitled to receive, on each 

share of Designated Preferred Stock if, as and when declared by the Board of Directors or any 

duly authorized committee of the Board of Directors, but only out of assets legally available 

therefor, cumulative cash dividends with respect to each Dividend Period (as defined below) at a 

per annum rate of 9.0% on (i) the Liquidation Amount per share of Designated Preferred Stock 

and (ii) the amount of accrued and unpaid dividends for any prior Dividend Period on such share 

of Designated Preferred Stock, if any. Such dividends shall begin to accrue and be cumulative 

from the Original Issue Date, shall compound on each subsequent Dividend Payment Date (i.e., 

no dividends shall accrue on other dividends unless and until the first Dividend Payment Date for 

such other dividends has passed without such other dividends having been paid on such date) and 

shall be payable quarterly in arrears on each Dividend Payment Date, commencing with the first 

such Dividend Payment Date to occur at least 20 calendar days after the Original Issue Date. In 

the event that any Dividend Payment Date would otherwise fall on a day that is not a Business 

Day, the dividend payment due on that date will be postponed to the next day that is a Business 

Day and no additional dividends will accrue as a result of that postponement. The period from 

and including any Dividend Payment Date to, but excluding, the next Dividend Payment Date is 

a “Dividend Period”, provided that the initial Dividend Period shall be the period from and 

including the Original Issue Date to, but excluding, the next Dividend Payment Date. 

Dividends that are payable on Designated Preferred Stock in respect of any Dividend 

Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The 

amount of dividends payable on Designated Preferred Stock on any date prior to the end of a 

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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 Issuer on the applicable record date, which shall be the 15th calendar day 

immediately preceding such Dividend Payment Date or such other record date fixed by the 

Board of Directors or any duly authorized committee of the Board of Directors that is not more 

than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record 

Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether 

or not such day is a Business Day. 

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 Issuer or any of its 

subsidiaries unless all accrued and unpaid dividends for all past Dividend Periods, including the 

latest completed Dividend Period (including, if applicable as provided in Section 3(a) above, 

dividends on such amount), on all outstanding shares of Designated Preferred Stock have been or 

are contemporaneously declared and paid in full (or have been declared and a sum sufficient for 

the payment thereof has been set aside for the benefit of the holders of shares of Designated 

Preferred Stock on the applicable record date). The foregoing limitation shall not apply to (i) 

redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in 

connection with the administration of any employee benefit plan in the ordinary course of 

business and consistent with past practice; (ii) the acquisition by the Issuer 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 Issuer or any of its subsidiaries), including as trustees or 

custodians; and (iii) the exchange or conversion of Junior Stock for or into other Junior Stock or 

of Parity Stock for or into other Parity Stock (with the same or lesser aggregate liquidation 

amount) or Junior Stock, in each case, solely to the extent required pursuant to binding 

contractual agreements entered into prior to the Signing Date or any subsequent agreement for 

the accelerated exercise, settlement or exchange thereof for Common Stock. 

When dividends are not paid (or declared and a sum sufficient for payment thereof set 

aside for the benefit of the holders thereof on the applicable record date) on any Dividend 

Payment Date (or, in the case of Parity Stock having dividend payment dates different from the 

Dividend Payment Dates, on a dividend payment date falling within a Dividend Period related to 

such Dividend Payment Date) in full upon Designated Preferred Stock and any shares of Parity 

Stock, all dividends declared on Designated Preferred Stock and all such Parity Stock and 

payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend 

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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 Issuer 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 Issuer, whether voluntary or involuntary, holders of 

Designated Preferred Stock shall be entitled to receive for each share of Designated Preferred 

Stock, out of the assets of the Issuer or proceeds thereof (whether capital or surplus) available for 

distribution to stockholders of the Issuer, subject to the rights of any creditors of the Issuer, 

before any distribution of such assets or proceeds is made to or set aside for the holders of 

Common Stock and any other stock of the Issuer ranking junior to Designated Preferred Stock as 

to such distribution, payment in full in an amount equal to the sum of (i) the Liquidation Amount 

per share and (ii) the amount of any accrued and unpaid dividends (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 Issuer or proceeds thereof are not sufficient to pay in full the amounts payable with respect 

to all outstanding shares of Designated Preferred Stock and the corresponding amounts payable 

with respect of any other stock of the Issuer ranking equally with Designated Preferred Stock as 

to such distribution, holders of Designated Preferred Stock and the holders of such other stock 

shall share ratably in any such distribution in proportion to the full respective distributions to 

which they are entitled. 

(c) Residual Distributions. If the Liquidation Preference has been paid in full to all 

holders of Designated Preferred Stock and the corresponding amounts payable with respect of 

any other stock of the Issuer ranking equally with Designated Preferred Stock as to such 

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distribution has been paid in full, the holders of other stock of the Issuer shall be entitled to 

receive all remaining assets of the Issuer (or proceeds thereof) according to their respective rights 

and preferences. 

(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this 

Section 4, the merger or consolidation of the Issuer with any other corporation or other entity, 

including a merger or consolidation in which the holders of Designated Preferred Stock receive 

cash, securities or other property for their shares, or the sale, lease or exchange (for cash, 

securities or other property) of all or substantially all of the assets of the Issuer, shall not 

constitute a liquidation, dissolution or winding up of the Issuer. 

Section 5. Redemption. 

(a) Optional Redemption. Except as provided below, the Designated Preferred Stock 

may not be redeemed prior to the later of (i) first Dividend Payment Date falling on or after the 

third anniversary of the Original Issue Date; and (ii) the date on which all outstanding shares of 

UST Preferred Stock have been redeemed, repurchased or otherwise acquired by the Issuer. On 

or after the first Dividend Payment Date falling on or after the third anniversary of the Original 

Issue Date, the Issuer, at its option, subject to the approval of the Appropriate Federal Banking 

Agency, may redeem, in whole or in part, at any time and from time to time, out of funds legally 

available therefor, the shares of Designated Preferred Stock at the time outstanding, 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 Issuer, at its option, subject to the 

approval of the Appropriate Federal Banking Agency and subject to the requirement that all 

outstanding shares of UST Preferred Stock shall previously have been redeemed, repurchased or 

otherwise acquired by the Issuer, 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 Issuer (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 Issuer (or any 

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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 Issuer 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 Issuer. Such mailing shall be at least 30 days and not more than 60 days before the date fixed 

for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed 

to have been duly given, whether or not the holder receives such notice, but failure duly to give 

such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares 

of Designated Preferred Stock designated for redemption shall not affect the validity of the 

proceedings for the redemption of any other shares of Designated Preferred Stock. 

Notwithstanding the foregoing, if shares of Designated Preferred Stock are issued in book-entry 

form through The Depository Trust Company or any other similar facility, notice of redemption 

may be given to the holders of Designated Preferred Stock at such time and in any manner 

permitted by such facility. Each notice of redemption given to a holder shall state: (1) the 

redemption date; (2) the number of shares of Designated Preferred Stock to be redeemed and, if 

less than all the shares held by such holder are to be redeemed, the number of such shares to be 

redeemed from such holder; (3) the redemption price; and (4) the place or places where 

certificates for such shares are to be surrendered for payment of the redemption price. 

(d) Partial Redemption. In case of any redemption of part of the shares of Designated 

Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either pro 

rata or in such other manner as the Board of Directors or a duly authorized committee thereof 

may determine to be fair and equitable. 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 Issuer, in trust for the pro rata benefit of the holders of the shares 

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

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

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

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

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

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

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

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

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

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

the Issuer, after which time the holders of the shares so called for redemption shall look only to 

the Issuer for payment of the redemption price of such shares. 

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

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

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

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

Stock). 

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

to exchange or convert such shares into any other securities. 

Section 7. Voting Rights. 

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

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

(b) 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 

Issuer 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 Issuer’s next annual meeting of stockholders (or at a special meeting called 

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

stockholders until all accrued and unpaid dividends for all past Dividend Periods, including the 

latest completed Dividend Period (including, if applicable as provided in Section 3(a) above, 

dividends on such amount), on all outstanding shares of Designated Preferred Stock have been 

declared and paid in full at which time such right shall terminate with respect to the Designated 

Preferred Stock, except as herein or by law expressly provided, subject to revesting in the event 

of each and every subsequent default of the character above mentioned; provided that it shall be 

a qualification for election for any Preferred Director that the election of such Preferred Director 

shall not cause the Issuer to violate any corporate governance requirements of any securities 

exchange or other trading facility on which securities of the Issuer may then be listed or traded 

that listed or traded companies must have a majority of independent directors. Upon any 

termination of the right of the holders of shares of Designated Preferred Stock and Voting Parity 

Stock as a class to vote for directors as provided above, the Preferred Directors shall cease to be 

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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 Issuer ranking senior to Designated Preferred Stock with respect to 

either or both the payment of dividends and/or the distribution of assets on any 

liquidation, dissolution or winding up of the Issuer; 

(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 Issuer with another corporation or 

other entity, unless in each case (x) the shares of Designated Preferred Stock remain 

outstanding or, in the case of any such merger or consolidation with respect to which the 

Issuer is not the surviving or resulting entity, are converted into or exchanged for 

preference securities of the surviving or resulting entity or its ultimate parent, and (y) 

such shares remaining outstanding or such preference securities, as the case may be, have 

such rights, preferences, privileges and voting powers, and limitations and restrictions 

thereof, 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; 

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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 Issuer to other 

persons prior to the Signing Date, or the creation and issuance, or an increase in the authorized or 

issued amount, whether pursuant to preemptive or similar rights or otherwise, of any other series 

of Preferred Stock, or any securities convertible into or exchangeable or exercisable for any other 

series of Preferred Stock, ranking equally with and/or junior to Designated Preferred Stock with 

respect to the payment of dividends (whether such dividends are cumulative or non-cumulative) 

and the distribution of assets upon liquidation, dissolution or winding up of the Issuer will not be 

deemed to adversely affect the rights, preferences, privileges or voting powers, and shall not 

require the affirmative vote or consent of, the holders of outstanding shares of the Designated 

Preferred Stock. 

(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 Issuer 

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

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

and neither the Issuer nor such transfer agent shall be affected by any notice to the contrary. 

Section 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 Issuer, or any warrants, rights or 

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

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

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095331-0002-11515-NY02.2693646.7

Section 11. Replacement Certificates. The Issuer shall replace any mutilated certificate at 

the holder’s expense upon surrender of that certificate to the Issuer. The Issuer shall replace 

certificates that become destroyed, stolen or lost at the holder’s expense upon delivery to the 

Issuer of reasonably satisfactory evidence that the certificate has been destroyed, stolen or lost, 

together with any indemnity that may be reasonably required by the Issuer. 

Section 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.