ex4-1.htm


    


    CERTIFICATE
OF DETERMINATION

    


    OF

    


    FIXED
RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B

    


    OF

    


    VALLEY
COMMERCE BANCORP

    


    Pursuant
to Section 401 of the Corporations Code of the State of California:

     

    We,
Donald A. Gilles, President, and Roy O. Estridge, Chief Financial Officer, of
Valley Commerce Bancorp, a corporation organized under the laws of the State of
California (hereinafter called the “Issuer”), do hereby certify as
follows:

     

    1.  On
January 20, 2009, the Board of Directors of the Issuer adopted a resolution
designating 7,700 shares of Preferred Stock as Fixed Rate Cumulative Perpetual
Preferred Stock, Series B.

     

    2.  No
shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series B have been
issued.

     

    3.  Pursuant
to the authority conferred upon the Board of Directors by the Articles of
Incorporation of the Issuer, the following resolution was duly adopted by the
Board of Directors on January 20, 2009 creating the series of Preferred Stock
designated as Fixed Rate Cumulative Perpetual Preferred Stock, Series
B:

     

    RESOLVED, that pursuant to the
provisions of the Articles of Incorporation of the Issuer and applicable law, a
series of Preferred Stock 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 B”
(the “Designated
Preferred Stock”).  The authorized number of shares of
Designated Preferred Stock shall be 7,700.

     

    Part
2.  Standard
Provisions.  The Standard Provisions contained in Exhibit A
attached hereto are incorporated herein by reference in their entirety and shall
be deemed to be a part of this Certificate of Determination 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 Determination (including the
Standard Provisions in Exhibit A hereto) as defined below:

     

    
      
        
        

      

      
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    (a) “Common Stock” means
the common stock, no par value per share, of the Issuer.

     

    (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 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 per share of Designated Preferred Stock.

     

    (e) “Minimum Amount” means
$1,925,000.

     

    (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).

     

    (g) “Signing Date” means
the Original Issue Date (as such term is defined in Exhibit A
hereto).

     

    Part. 4.
Certain Voting
Matters.  Holders of shares of Designated Preferred Stock will
be entitled to one vote for each such share on any matter on which holders of
Designated Preferred Stock are entitled to vote, including any action by written
consent.

     

    [Remainder of Page Intentionally Left
Blank]

     

    
      
        
        

      

      
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    We
further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.

     

    Date:  January 26, 2009

    
      
        	
                 

              	
                 

              	/s/ Donald A.
      Gilles 	 
	 	 	Name:
      Donald A. Gilles	 
	 	 	Title:
      President	 


      

    

     

    
      
        
          	
                   

                	
                   

                	/s/ Roy O.
      Estridge 	 
	 	 	Name:
      Roy O. Estridge	 
	 	 	Title:
      Chief Financial Officer	 


        

         

        
          
            
            

          

          
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    EXHIBIT
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
Determination.  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)  “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 Issuer as defined in Section 3(q) of the Federal Deposit Insurance Act (12
U.S.C. Section 1813(q)), or any successor provision.

     

    (c)  “Business Combination”
means a merger, consolidation, statutory share exchange or similar transaction
that requires the approval of the Issuer’s stockholders.

    


    (d) “Business Day” means
any day except Saturday, Sunday and any day on which banking institutions in the
State of New York generally are authorized or required by law or other
governmental actions to close.

     

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

     

    (f) “Certificate of
Determination” means the Certificate of Determination 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.

     

    (g) “Charter” means the
Issuer’s certificate or articles of incorporation, articles of association, or
similar organizational document.

     

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

     

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

     

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

     

    
      
        
        

      

      
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    (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 Issuer, including the
Designated Preferred Stock.

     

    (n) “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).

     

    (o) “Standard Provisions”
mean these Standard Provisions that form a part of the Certificate of
Determination relating to the Designated Preferred Stock.

     

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

     

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

     

    
      
        
        

      

      
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      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 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
Determination).

     

    (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.

     

    
      
        
        

      

      
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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 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 

     

    
      
        
        

      

      
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      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 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 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 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, 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 determination 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


     

    
      
        
        

      

      
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    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 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
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      have been
deposited by the Issuer, in trust for the pro rata benefit of the
holders of the shares called for redemption, with a bank or trust company doing
business in the Borough of Manhattan, The City of New York, and having a capital
and surplus of at least $500 million and selected by the Board of Directors, so
as to be and continue to be available solely therefor, then, notwithstanding
that any certificate for any share so called for redemption has not been
surrendered for cancellation, on and after the redemption date dividends shall
cease to accrue on all shares so called for redemption, all shares so called for
redemption shall no longer be deemed outstanding and all rights with respect to
such shares shall forthwith on such redemption date cease and terminate, except
only the right of the holders thereof to receive the amount payable on such
redemption from such bank or trust company, without interest. Any funds
unclaimed at the end of three years from the redemption date shall, to the
extent permitted by law, be released to the Issuer, after which time the holders
of the shares so called for redemption shall look only to the Issuer for payment
of the redemption price of such shares.

    

     

    (f) Status of Redeemed
Shares. Shares of Designated Preferred Stock that are redeemed,
repurchased or otherwise acquired by the Issuer shall revert to authorized but
unissued shares of Preferred Stock (provided that any such
cancelled shares of Designated Preferred Stock may be reissued only as shares of
any series of Preferred Stock other than Designated Preferred
Stock).

     

    Section
6. Conversion. Holders
of Designated Preferred Stock shares shall have no right to exchange or convert
such shares into any other securities.

     

    Section
7. Voting
Rights.

     

    (a) General. The holders
of Designated Preferred Stock shall not have any voting rights except as set
forth below or as otherwise from time to time required by law.

     

    (b) 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
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”) 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
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      directors
as provided above, the Preferred Directors shall cease to be qualified as
directors and the term of office of all Preferred Directors then in office shall
terminate immediately.  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 written consent of
stockholders required by law or by the Charter, the vote or written 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 Determination
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 Determination 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 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 Determination, 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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    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.

     

    
      
        
        

      

      
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    CERTIFICATE
OF DETERMINATION

    


    OF

    


    FIXED
RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES C

    


    OF

    


    VALLEY
COMMERCE BANCORP

    


    Pursuant
to Section 401 of the Corporations Code of the State of California:

     

    We,
Donald A. Gilles, President, and Roy O. Estridge, Chief Financial Officer, of
Valley Commerce Bancorp, a corporation organized under the laws of the State of
California (hereinafter called the “Issuer”), do hereby certify as
follows:

     

    1.  On
January 20, 2009, the Board of Directors of the Issuer adopted a resolution
designating 386 shares of Preferred Stock as Fixed Rate Cumulative Perpetual
Preferred Stock, Series C.

     

    2.  No
shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series C have been
issued.

     

    3.  Pursuant
to the authority conferred upon the Board of Directors by the Articles of
Incorporation of the Issuer, the following resolution was duly adopted by the
Board of Directors on January 20, 2009 creating the series of Preferred Stock
designated as Fixed Rate Cumulative Perpetual Preferred Stock, Series
C:

     

    RESOLVED, that pursuant to the
provisions of the Articles of Incorporation of the Issuer and applicable law, a
series of Preferred Stock 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 C”
(the “Designated
Preferred Stock”).  The authorized number of shares of
Designated Preferred Stock shall be 386.

     

    Part
2.  Standard
Provisions.  The Standard Provisions contained in Exhibit A
attached hereto are incorporated herein by reference in their entirety and shall
be deemed to be a part of this Certificate of Determination 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 Determination (including the
Standard Provisions in Exhibit A hereto) as defined below:

     

    
      
        
        

      

      
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    (a) “Common Stock” means
the common stock, no par value per share, of the Issuer.

     

    (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 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 per share of Designated Preferred Stock.

     

    (e) “Minimum Amount” means
$96,500.

     

    (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.

     

    (g) “Signing Date” means
the Original Issue Date (as such term is defined in Exhibit A
hereto).

     

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

     

    Part. 4.
Certain Voting
Matters.  Holders of shares of Designated Preferred Stock will
be entitled to one vote for each such share on any matter on which holders of
Designated Preferred Stock are entitled to vote, including any action by written
consent.

     

    [Remainder of Page Intentionally Left
Blank]

     

    
      
        
        

      

      
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    We
further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.

     

    
      Date:  January 26, 2009

      
        
          
            	
                     

                  	
                     

                  	/s/ Donald A.
      Gilles 
	 	 	Name:
      Donald A. Gilles	 
	 	 	Title:
      President	 


          

        

      

       

      
        
          
            
              	
                       

                    	
                       

                    	/s/ Roy O.
      Estridge 
	 	 	Name:
      Roy O. Estridge	 
	 	 	Title:
      Chief Financial Officer	 


            

          

           

          
            
              
              



          

        

      

    

     

    
      
        
        

      

      
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    EXHIBIT
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
Determination.  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
Determination” means the Certificate of Determination 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
Determination 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 Determination, 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
Determination).

     

    (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 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


     

    
      
        
        

      

      
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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)
(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 determination 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
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”) 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 qualified as directors and the
term of office of all Preferred Directors then in office shall terminate
immediately.  Any 

     

    
      
        
        

      

      
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      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 written consent of
stockholders required by law or by the Charter, the vote or written 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 Determination
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 Determination 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;

     

    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


     

    
      
        
        

      

      
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    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 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 Determination, 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.

     

    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 

     

    
      
        
        

      

      
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      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.

     

     

    A-10