Exhibit 4.1


 


CERTIFICATE OF
DETERMINATION


 


OF


 


FIXED RATE CUMULATIVE PERPETUAL PREFERRED
STOCK, SERIES A


 


OF


 


MANHATTAN BANCORP


 


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


 


We, Jeffrey Watson, President, and Dean Fletcher, Secretary, of Manhattan Bancorp, a corporation
organized under the laws of the State of California (hereinafter called the “Corporation”),
do hereby certify as follows:


 


1.             On November 18, 2008, the Board of
Directors of the Corporation adopted a resolution designating One Thousand
Seven Hundred (1,700) shares of Preferred Stock as Fixed Rate Cumulative
Perpetual Preferred Stock, Series A.


 


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


 


3.             Pursuant to the authority conferred
upon the Board of Directors by the Articles of Incorporation of the
Corporation, the following resolution was duly adopted by the Board of
Directors on November 18, 2008
creating the series of Preferred Stock designated as Fixed Rate Cumulative
Perpetual Preferred Stock, Series A:


 


RESOLVED, that pursuant to the provisions of the
Articles of Incorporation of the Corporation and applicable law, a series of
Preferred Stock of the Corporation be and hereby is created, and that the
designation and number of shares of such series, and the voting and other
powers, preferences and relative, participating, optional or other rights, and
the qualifications, limitations and restrictions thereof, of the shares of such
series are as follows:


 


Part 1.     Designation
and Number of Shares. There is hereby created out of the authorized and
unissued shares of preferred stock of the Corporation a series of preferred
stock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock, Series A”
(the “Designated Preferred Stock”). The authorized number of shares of
Designated Preferred Stock shall be One Thousand Seven Hundred (1,700).


 


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:


 


(a)           “Common Stock” means the
common stock of the Corporation.


 


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


 


(c)           “Junior Stock” means the
Common Stock,  and any other class
or series of stock of the Corporation the terms of which expressly provide that
it ranks junior to Designated Preferred Stock as to dividend rights and/or as
to rights on liquidation, dissolution or winding up of the Corporation.


 


(d)           “Liquidation Amount” means
$1,000 per
share of Designated Preferred Stock.


 


(e)           “Minimum Amount” means
$425,000.


 


(f)            “Parity Stock” means any
class or series of stock of the Corporation (other than Designated Preferred
Stock) the terms of which do not expressly provide that such class or series
will rank senior or junior to Designated Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of the
Corporation (in each case without regard to whether dividends accrue
cumulatively or non-cumulatively).


 


(g)           “Signing Date” means December 5, 2008.


 


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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IN WITNESS
WHEREOF, the undersigned have caused this Certificate of Determination to be
executed this 1st day of December, 2008.


 


 


	
   

  	
  /s/ Jeffrey
  Watson

  
	
   

  	
  Name:

  	
  Jeffrey
  Watson

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Dean
  Fletcher

  
	
   

  	
  Name:

  	
  Dean
  Fletcher

  
	
   

  	
  Title:

  	
  Secretary

  



 


 


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:
  December 1, 2008

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Jeffrey
  Watson

  
	
   

  	
  Name:

  	
  Jeffrey
  Watson

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Dean
  Fletcher

  
	
   

  	
  Name:

  	
  Dean
  Fletcher

  
	
   

  	
  Title:

  	
  Secretary

  



 


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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 Corporation.


 


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


 


(a)                                  “Applicable Dividend Rate” means (i) during
the period from the Original Issue Date to, but excluding, the first day of the
first Dividend Period commencing on or after the fifth anniversary of the
Original Issue Date, 5% per annum and (ii) from and after the first day of
the first Dividend Period commencing on or after the fifth anniversary of the
Original Issue Date, 9% per annum.


 


(b)                                 “Appropriate Federal Banking Agency”
means the “appropriate Federal banking agency” with respect to the Corporation
as defined in Section 3(q) of the Federal Deposit Insurance Act (12
U.S.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 Corporation’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
Corporation, 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 Corporation’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).


 


1

















 


(k)                                  “Original Issue Date” means the date
on which shares of Designated Preferred Stock are first issued.


 


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


 


(m)                               “Preferred Stock” means any and all
series of preferred stock of the Corporation, including the Designated
Preferred Stock.


 


(n)                                 “Qualified Equity Offering” means the
sale and issuance for cash by the Corporation to persons other than the
Corporation or any of its subsidiaries after the Original Issue Date of shares
of perpetual Preferred Stock, Common Stock or any combination of such stock,
that, in each case, qualify as and may be included in Tier 1 capital of the
Corporation at the time of issuance under the applicable risk-based capital
guidelines of the Corporation’s Appropriate Federal Banking Agency (other than
any such sales and issuances made pursuant to agreements or arrangements
entered into, or pursuant to financing plans which were publicly announced, on
or prior to October 13, 2008).


 


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


 


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


 


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


 


(r)                                    “Voting Parity Stock” means, with
regard to any matter as to which the holders of Designated Preferred Stock are
entitled to vote as specified in Sections 7(a) and 7(b) of these
Standard Provisions that form a part of the Certificate of 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, 


 


2

















 


commencing with the first
such Dividend Payment Date to occur at least 20 calendar days after the
Original Issue Date. In the event that any Dividend Payment Date would
otherwise fall on a day that is not a Business Day, the dividend payment due on
that date will be postponed to the next day that is a Business Day and no
additional dividends will accrue as a result of that postponement. The period
from and including any Dividend Payment Date to, but excluding, the next
Dividend Payment Date is a “Dividend Period”, provided that the initial
Dividend Period shall be the period from and including the Original Issue Date
to, but excluding, the next Dividend Payment Date.


 


Dividends that are payable
on Designated Preferred Stock in respect of any Dividend Period shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. The
amount of dividends payable on Designated Preferred Stock on any date prior to
the end of a Dividend Period, and for the initial Dividend Period, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months, and
actual days elapsed over a 30-day month.


 


Dividends that are payable
on Designated Preferred Stock on any Dividend Payment Date will be payable to
holders of record of Designated Preferred Stock as they appear on the stock
register of the Corporation on the applicable record date, which shall be the
15th calendar day immediately preceding such Dividend Payment Date or such
other record date fixed by the Board of Directors or any duly authorized
committee of the Board of Directors that is not more than 60 nor less than 10
days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any
such day that is a Dividend Record Date shall be a Dividend Record Date whether
or not such day is a Business Day.


 


Holders of Designated
Preferred Stock shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and
payable on Designated Preferred Stock as specified in this Section 3
(subject to the other provisions of the Certificate of 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 Corporation
or any of its subsidiaries unless all accrued and unpaid dividends for all past
Dividend Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such
amount), on all outstanding shares of Designated Preferred Stock have been or
are contemporaneously declared and paid in full (or have been declared and a
sum sufficient for the payment thereof has been set aside for the benefit of
the holders of shares of Designated Preferred Stock on the applicable record date).
The foregoing limitation shall not apply to (i) redemptions, purchases or
other acquisitions of shares of Common Stock or other Junior Stock in
connection with the administration of any employee benefit plan in the ordinary
course of business (including purchases to offset the Share Dilution Amount (as
defined below) pursuant to a publicly 


 


3

















 


announced repurchase plan)
and consistent with past practice, provided that
any purchases to offset the Share Dilution Amount shall in no event exceed the
Share Dilution Amount; (ii) purchases or other acquisitions by a
broker-dealer subsidiary of the Corporation solely for the purpose of
market-making, stabilization or customer facilitation transactions in Junior Stock
or Parity Stock in the ordinary course of its business; (iii) purchases by
a broker-dealer subsidiary of the Corporation of capital stock of the
Corporation for resale pursuant to an offering by the Corporation of such
capital stock underwritten by such broker-dealer subsidiary; (iv) any
dividends or distributions of rights or Junior Stock in connection with a
stockholders’ rights plan or any redemption or repurchase of rights pursuant to
any stockholders’ rights plan; (v) the acquisition by the Corporation or
any of its subsidiaries of record ownership in Junior Stock or Parity Stock for
the beneficial ownership of any other persons (other than the Corporation or
any of its subsidiaries), including as trustees or custodians; and (vi) the
exchange or conversion of Junior Stock for or into other Junior Stock or of
Parity Stock for or into other Parity Stock (with the same or lesser aggregate
liquidation amount) or Junior Stock, in each case, solely to the extent
required pursuant to binding contractual agreements entered into prior to the
Signing Date or any subsequent agreement for the accelerated exercise,
settlement or exchange thereof for Common Stock. “Share Dilution Amount” means
the increase in the number of diluted shares outstanding (determined in
accordance with generally accepted accounting principles in the United States,
and as measured from the date of the Corporation’s consolidated financial
statements most recently filed with the Securities and Exchange Commission
prior to the Original Issue Date) resulting from the grant, vesting or exercise
of equity-based compensation to employees and equitably adjusted for any stock
split, stock dividend, reverse stock split, reclassification or similar
transaction.


 


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 


 


4

















 


dividend on a Dividend
Payment Date, the Corporation will provide written notice to the holders of
Designated Preferred Stock prior to such Dividend Payment Date.


 


Subject to the foregoing,
and not otherwise, such dividends (payable in cash, securities or other
property) as may be determined by the Board of Directors or any duly authorized
committee of the Board of Directors may be declared and paid on any securities,
including Common Stock and other Junior Stock, from time to time out of any
funds legally available for such payment, and holders of Designated Preferred
Stock shall not be entitled to participate in any such dividends.


 


Section 4. Liquidation
Rights.


 


(a)                                  Voluntary or Involuntary Liquidation. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, holders of Designated Preferred Stock shall be entitled to
receive for each share of Designated Preferred Stock, out of the assets of the
Corporation or proceeds thereof (whether capital or surplus) available for
distribution to stockholders of the Corporation, subject to the rights of any
creditors of the Corporation, before any distribution of such assets or
proceeds is made to or set aside for the holders of Common Stock and any other
stock of the Corporation ranking junior to Designated Preferred Stock as to
such distribution, payment in full in an amount equal to the sum of (i) the
Liquidation Amount per share and (ii) the amount of any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above,
dividends on such amount), whether or not declared, to the date of payment
(such amounts collectively, the “Liquidation Preference”).


 


(b)                                 Partial Payment. If in any distribution described in Section 4(a) above
the assets of the Corporation or proceeds thereof are not sufficient to pay in
full the amounts payable with respect to all outstanding shares of Designated
Preferred Stock and the corresponding amounts payable with respect of any other
stock of the Corporation ranking equally with Designated Preferred Stock as to
such distribution, holders of Designated Preferred Stock and the holders of
such other stock shall share ratably in any such distribution in proportion to
the full respective distributions to which they are entitled.


 


(c)                                  Residual Distributions. If the Liquidation Preference has been paid
in full to all holders of Designated Preferred Stock and the corresponding
amounts payable with respect of any other stock of the Corporation ranking
equally with Designated Preferred Stock as to such distribution has been paid
in full, the holders of other stock of the Corporation shall be entitled to
receive all remaining assets of the Corporation (or proceeds thereof) according
to their respective rights and preferences.


 


(d)                                 Merger, Consolidation and Sale of Assets Not
Liquidation. For purposes of
this Section 4, the merger or consolidation of the Corporation with any
other corporation or other entity, including a merger or consolidation in which
the holders of Designated Preferred Stock receive cash, securities or other
property for their shares, or 


 


5

















 


the sale, lease or exchange
(for cash, securities or other property) of all or substantially all of the
assets of the Corporation, shall not constitute a liquidation, dissolution or
winding up of the Corporation.


 


Section 5. Redemption.


 


(a)                                  Optional Redemption. Except as provided below, the Designated
Preferred Stock may not be redeemed prior to the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date. On or
after the first Dividend Payment Date falling on or after the third anniversary
of the Original Issue Date, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, in whole or in
part, at any time and from time to time, out of funds legally available
therefor, the shares of Designated Preferred Stock at the time outstanding,
upon notice given as provided in Section 5(c) below, at a redemption
price equal to the sum of (i) the Liquidation Amount per share and (ii) except
as otherwise provided below, any accrued and unpaid dividends (including, if
applicable as provided in Section 3(a) above,
dividends on such amount) (regardless of whether any dividends are actually
declared) to, but excluding, the date fixed for redemption.


 


Notwithstanding the
foregoing, prior to the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, at its option,
subject to the approval of the Appropriate Federal Banking Agency, may redeem,
in whole or in part, at any time and from time to time, the shares of
Designated Preferred Stock at the time outstanding, upon notice given as provided
in Section 5(c) below, at a redemption price equal to the sum of (i) the
Liquidation Amount per share and (ii) except as otherwise provided below,
any accrued and unpaid dividends (including, if applicable as provided in Section 3(a) above,
dividends on such amount) (regardless of whether any dividends are actually
declared) to, but excluding, the date fixed for redemption; provided that (x) the Corporation (or
any successor by Business Combination) has received aggregate gross proceeds of
not less than the Minimum Amount (plus the “Minimum Amount” as defined in the
relevant certificate of 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 Corporation (or any successor by Business Combination) from
such Qualified Equity Offerings (including Qualified Equity Offerings of such
successor).


 


The redemption price for any
shares of Designated Preferred Stock shall be payable on the redemption date to
the holder of such shares against surrender of the certificate(s) evidencing
such shares to the Corporation or its agent. Any declared but unpaid dividends
payable on a redemption date that occurs subsequent to the Dividend Record Date
for a Dividend Period shall not be paid to the holder entitled to receive the 


 


6

















 


redemption price on the
redemption date, but rather shall be paid to the holder of record of the
redeemed shares on such Dividend Record Date relating to the Dividend Payment
Date as provided in Section 3 above.


 


(b)                                 No Sinking Fund. The Designated Preferred Stock will not be
subject to any mandatory redemption, sinking fund or other similar provisions.
Holders of Designated Preferred Stock will have no right to require redemption
or repurchase of any shares of Designated Preferred Stock.


 


(c)                                  Notice of Redemption. Notice of every redemption of shares of
Designated Preferred Stock shall be given by first class mail, postage prepaid,
addressed to the holders of record of the shares to be redeemed at their
respective last addresses appearing on the books of the Corporation. Such
mailing shall be at least 30 days and not more than 60 days before the date
fixed for redemption. Any notice mailed as provided in this Subsection shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice, but failure duly to give such notice by mail, or any
defect in such notice or in the mailing thereof, to any holder of shares of
Designated Preferred Stock designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of
Designated Preferred Stock. 
Notwithstanding the foregoing, if shares of Designated Preferred
Stock are issued in book-entry form through The Depository Trust Corporation or
any other similar facility, notice of redemption may be given to the holders of Designated Preferred Stock at
such time and in any manner permitted by such facility. Each notice of
redemption given to a holder shall state: (1) the redemption date; (2) the
number of shares of Designated Preferred Stock to be redeemed and, if less than
all the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (3) the redemption price; and (4) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price.


 


(d)                                 Partial Redemption. In case of any redemption of part of the
shares of Designated Preferred Stock at the time outstanding, the shares to be
redeemed shall be selected either pro rata or
in such other manner as the Board of Directors or a duly authorized committee
thereof may determine to be fair and equitable. Subject to the provisions
hereof, the Board of Directors or a duly authorized committee thereof shall
have full power and authority to prescribe the terms and conditions upon which
shares of Designated Preferred Stock shall be redeemed from time to time. If
fewer than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without charge
to the holder thereof.


 


(e)                                  Effectiveness of Redemption. If notice of redemption has been duly given
and if on or before the redemption date specified in the notice all funds
necessary for the redemption have been deposited by the Corporation, in trust
for the pro rata benefit of the
holders of the shares called for redemption, with a bank or trust company doing
business in the Borough of Manhattan, The City of New York, and having a
capital and surplus of at least $500 million and selected by the Board of
Directors, so as to be and continue to be available solely therefor, then,
notwithstanding that any certificate for any 


 


7

















 


share so called for
redemption has not been surrendered for cancellation, on and after the
redemption date dividends shall cease to accrue on all shares so called for
redemption, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable on such redemption from such bank or
trust company, without interest. Any funds unclaimed at the end of three years
from the redemption date shall, to the extent permitted by law, be released to
the Corporation, after which time the holders of the shares so called for
redemption shall look only to the Corporation for payment of the redemption
price of such shares.


 


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


 


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


 


Section 7. Voting
Rights.


 


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


 


(b)                                 Preferred Stock Directors. Whenever, at any time or times, dividends payable
on the shares of Designated Preferred Stock have not been paid for an aggregate
of six quarterly Dividend Periods or more, whether or not consecutive, the
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 Corporation’s next annual
meeting of stockholders (or at a special meeting called for that purpose prior
to such next annual meeting) and at each subsequent annual meeting of
stockholders until all accrued and unpaid dividends for all past Dividend
Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such
amount), on all outstanding shares of Designated Preferred Stock have been
declared and paid in full at which time such right shall terminate with respect
to the Designated Preferred Stock, except as herein or by law expressly
provided, subject to revesting in the event of each and every subsequent
default of the character above mentioned; provided
that it shall be a qualification for election for any Preferred
Director that the election of such Preferred Director shall not cause the
Corporation to violate any corporate governance requirements of any securities
exchange or other trading facility on which securities of the Corporation may
then be listed or traded that listed or traded companies must have a majority
of independent directors. Upon any termination of the right of the holders of
shares of Designated Preferred Stock and Voting Parity Stock as a class to vote
for 


 


8

















 


directors as provided above,
the Preferred Directors shall cease to be qualified as directors, the term of
office of all Preferred Directors then in office shall terminate immediately
and the authorized number of directors shall be reduced by the number of
Preferred Directors elected pursuant hereto. Any Preferred Director may be
removed at any time, with or without cause, and any vacancy created thereby may
be filled, only by the affirmative vote of the holders a majority of the shares
of Designated Preferred Stock at the time outstanding voting separately as a
class together with the holders of shares of Voting Parity Stock, to the extent
the voting rights of such holders described above are then exercisable. If the
office of any Preferred Director becomes vacant for any reason other than
removal from office as aforesaid, the remaining Preferred Director may choose a
successor who shall hold office for the unexpired term in respect of which such
vacancy occurred.


 


(c)                                  Class Voting Rights as to Particular Matters. So long as any shares of Designated
Preferred Stock are outstanding, in addition to any other vote or 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 Corporation ranking senior to Designated
Preferred Stock with respect to either or both the payment of dividends and/or
the distribution of assets on any liquidation, dissolution or winding up of the
Corporation;


 


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(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 Corporation
with another corporation or other entity, unless in each case (x) the
shares of Designated Preferred Stock remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the
surviving or resulting entity, are converted into or exchanged for preference
securities of the surviving or resulting entity or its ultimate parent, and (y) such
shares remaining outstanding or such preference securities, as the case may be,
have such rights, preferences, privileges and voting powers, and limitations
and restrictions thereof, taken as a whole, as are not materially less
favorable to the holders thereof than the rights, preferences, privileges and
voting powers, and limitations and restrictions thereof, of Designated
Preferred Stock immediately prior to such consummation, taken as a whole;


 


provided, however,
that for all purposes of this Section 7(c), any increase in the amount of
the authorized Preferred Stock, including any increase in the authorized amount
of Designated Preferred Stock necessary to satisfy preemptive or similar rights
granted by the Corporation to other persons prior to the Signing Date, or the
creation and issuance, or an increase in the authorized or issued amount,
whether pursuant to preemptive or similar rights or otherwise, of any other
series of Preferred Stock, or any securities convertible into or exchangeable
or exercisable for any other series of Preferred Stock, ranking equally with
and/or junior to Designated Preferred Stock with respect to the payment of
dividends (whether such dividends are cumulative or non-cumulative) and the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and shall not require the affirmative vote or
consent of, the holders of outstanding shares of the Designated Preferred
Stock.


 


(d)                                 Changes after Provision for Redemption. No vote or consent of the holders of
Designated Preferred Stock shall be required pursuant to Section 7(c) above
if, at or prior to the time when any such vote or consent would otherwise be
required pursuant to such Section, all outstanding shares of the Designated
Preferred Stock shall have been redeemed, or shall have been called for
redemption upon proper notice and sufficient funds shall have been deposited in
trust for such redemption, in each case pursuant to Section 5 above.


 


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(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 Corporation
and the transfer agent for Designated Preferred Stock may deem and treat the
record holder of any share of Designated Preferred Stock as the true and lawful
owner thereof for all purposes, and neither the Corporation nor such transfer
agent shall be affected by any notice to the contrary.


 


Section 9. Notices.
All notices or communications in respect of Designated Preferred Stock shall be
sufficiently given if given in writing and delivered in person or by first
class mail, postage prepaid, or if given in such other manner as may be
permitted in this Certificate of 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
Corporation or any similar facility, such notices may be given to the holders
of Designated Preferred Stock in any manner permitted by such facility.


 


Section 10. No
Preemptive Rights. No share of Designated Preferred Stock shall have any
rights of preemption whatsoever as to any securities of the Corporation, or any
warrants, rights or options issued or granted with respect thereto, regardless
of how such securities, or such warrants, rights or options, may be designated,
issued or granted.


 


Section 11. Replacement
Certificates. The Corporation shall replace any mutilated certificate at
the holder’s expense upon surrender of that certificate to the Corporation. The
Corporation shall replace certificates that become destroyed, stolen or lost at
the holder’s expense upon delivery to the Corporation of reasonably
satisfactory evidence that the certificate has been destroyed, stolen or lost,
together with any indemnity that may be reasonably required by the Corporation.


 


Section 12. Other
Rights. The shares of Designated Preferred Stock shall not have any rights,
preferences, privileges or voting powers or relative, participating, optional
or other special rights, or qualifications, limitations or restrictions
thereof, other than as set forth herein or in the Charter or as provided by
applicable law.


 


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