ex4-1.htm


    
      

    

    Exhibit 4.1

     

    CERTIFICATE
OF DESIGNATION

     OF

     COMMON
STOCK EQUIVALENT JUNIOR PREFERRED STOCK

     OF

    UNITED
COMMUNITY BANKS, INC.

     

    Pursuant
to Section 14-2-602 of
the

    Georgia
Business Corporation Code

     

    United
Community Banks, Inc., a corporation organized under the laws of the State of
Georgia (the “Corporation”),
does hereby certify that:

     

    1. At a
meeting duly convened and held on March 26, 2010, the Board of Directors of the
Corporation (the “Board”)
duly adopted the following resolutions authorizing the issuance and sale by the
Corporation of a series of the Corporation’s preferred stock, $1.00 par value
per share, to be known as the Common Stock Equivalent Junior Preferred
Stock:

     

    “RESOLVED,
that the powers, preferences, participation and other special rights,
qualifications, limitations, restrictions and other designations of the
Corporation’s Common Stock Equivalent Junior Preferred Stock, including those
established by the Board and the number of authorized shares thereof, are
authorized and approved as set forth in the Certificate of Designation attached
hereto as Exhibit
A, which is incorporated herein and made a part of these resolutions by
reference.”

     

    2. Attached hereto, and
thereby made a part hereof, is such Exhibit
A from the Board’s resolution designating the Common Stock Equivalent
Junior Preferred Stock.

     

    IN
WITNESS WHEREOF, this Certificate of Designation is executed on behalf of
the Corporation by its duly authorized officer this 31st day
of March, 2010.

     

    
      
        	 	UNITED COMMUNITY BANKS,
      INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/
      Rex S. Schuette	 
	 	Name:
      Rex S. Schuette 	 
	 	Title:  Executive
      Vice President & CFO	 


      

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        

      

    

    Exhibit
A

     

    CERTIFICATE
OF DESIGNATION

    OF

    COMMON
STOCK EQUIVALENT

    JUNIOR
PREFERRED STOCK

    OF

    UNITED
COMMUNITY BANKS, INC.

     

    Pursuant
to the authority vested in the Board of Directors (the “Board”)
by the Restated Articles of Incorporation of United Community Banks, Inc. (the
“Corporation”),
as amended (the “Articles
of Incorporation”), the Board does hereby designate, create, authorize
and provide for the issue of a series of preferred stock, $1.00 par value per
share, which shall be designated as “Common Stock Equivalent Junior Preferred
Stock” (the “Junior
Preferred Stock”), consisting of 1,000,000 shares having the
following  powers, preferences, participation and other special
rights, qualifications, limitations, restrictions and other
designations:

     

    Section
I.                Definitions

     

    “Acquiring
Person” has the meaning specified in Section VI(c).

     

    “Applicable
Conversion Rate” means the Initial Conversion Rate, subject to adjustment
pursuant to Section II(b), as applicable, for any such event occurring
subsequent to the initial determination of such rate.

     

    “Board”
has the meaning specified in the preamble.

     

    “Articles
of Incorporation” has the meaning specified in the preamble.

     

    “Capacity
Amendment” means an amendment to the Articles of Incorporation increasing
the number of shares of Common Stock that the Corporation is authorized to issue
to more than 100,000,000.

     

    “Change
of Control” has the meaning specified in Section VI(b).

     

    “Common
Dividend Equivalent Amount” has the meaning specified in Section
III(a).

     

    “Common
Stock” means the Common Stock, $1.00 par value per share, of the
Corporation.

     

    “Conversion
Date” means, with respect to a share of Junior Preferred Stock, the date
on which such share is converted into Common Stock.

     

    “Convertible
Holder” means a Holder, other than the initial Holder or an affiliate
thereof, who acquires one or more shares of Junior Preferred Stock following a
Permitted Transfer.

     

    “Conversion
Notice” shall mean the notice given by a Convertible Holder to the
Corporation, specifying the number of shares of Junior Preferred Stock to be
converted into Common Stock and certifying that such Person is a Convertible
Holder.

     

    “Corporation”
has the meaning specified in the preamble.

     

    
      
         


      

      
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    “Exchange
Property” has the meaning specified in Section VI(a).

     

    “Holder”
means a Person in whose name any shares of Junior Preferred Stock are
registered, which may be treated by the Corporation as the absolute owner of
such shares for all purposes.

     

    “Initial
Conversion Rate” means, for each share of Junior Preferred Stock, one
hundred (100) shares of Common Stock.

     

    “Issue
Date” means the date that the Junior Preferred Stock is first
issued.

     

    “Junior
Preferred Stock” has the meaning specified in the preamble.

     

    “Junior
Stock” shall mean any class of capital stock or series of Preferred Stock
of the Corporation established by the Board after the Issue Date, the terms of
which do not expressly provide that such class or series ranks senior to or on
parity with the Junior Preferred Stock as to dividend rights or rights upon the
liquidation, winding-up or dissolution of the Corporation.

     

    “Liquidation
Event” has the meaning specified in Section V(a).

     

    “Parity
Stock” shall mean any class of capital stock or series of Preferred Stock
established by the Board after the Issue Date, the terms of which expressly
provide that such class or series will rank on parity with the Junior Preferred
Stock as to dividend rights or rights upon the liquidation, winding-up or
dissolution of the Corporation.

     

    “Permitted
Transfer” means a sale or other transfer (i) to an affiliate of the
initial Holder or to the Corporation; (ii) in a widespread public distribution;
(iii) in transfer in which no transferee (or group of associated transferees)
would receive 2 percent or more of any class of voting securities of the
Corporation; or (iv) to a transferee that would control more than 50 percent of
the voting securities of the Corporation without any transfer from the initial
Holder.

     

    “Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company or trust.

     

    “Record
Date” means, with respect to any dividend, distribution or other
transaction or event in which the holders of the Common Stock (or other
applicable security) have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of holders of the Common Stock (or
other applicable security) entitled to receive such cash, securities or other
property (whether such date is fixed by the Board or a duly authorized committee
of the Board or by statute, contract or otherwise).

     

    “Senior
Stock” shall mean each class of capital stock or series of Preferred
Stock established by the Board after the Issue Date, the terms of which
expressly provide that such class or series will rank senior to the Junior
Preferred Stock as to dividend rights or rights upon the liquidation, winding-up
or dissolution of the Corporation.

     

    “Stockholder
Approval” means the requisite approval by the stockholders of the
Corporation of the Capacity Amendment.

     

    “Transfer
Agent” shall mean the Corporation’s duly appointed transfer agent,
registrar, redemption, conversion and dividend disbursing agent for the Junior
Preferred Stock and transfer agent and registrar for any Common Stock issued
upon conversion of the Junior Preferred Stock, or any successor duly appointed
by the Corporation.

     

    
      
         


      

      
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    Section
II.             
Conversion

     

    (a)           No
share of Junior Preferred Stock (or fraction thereof) may be converted into
Common Stock unless held by a Convertible Holder.  Each share of
Junior Preferred Stock (or fraction thereof) held by a Convertible Holder shall
be convertible at any time following the Stockholder Approval into a number of
shares of Common Stock equal to the product of (i) the fraction of a share of
Junior Preferred Stock converted and (ii) the Applicable Conversion Rate in
effect on the Conversion Date, plus cash in lieu of any fractional shares of
Common Stock pursuant to Section II(c)(iv).  For all purposes with
respect to the conversion of Junior Preferred Stock, references herein to
“Common Stock” shall include and mean any cash, securities or other property
(including payments of cash in lieu of fractional shares of Common Stock) that
may be due upon such conversion and references to “Junior Preferred Stock” shall
include and mean any fractional shares thereof.

     

    (b)           Adjustments
to Conversion Rate.  If, at any time while Junior Preferred Stock
remains outstanding, (i) the Corporation issues to holders of the Common Stock
as a class shares of Common Stock or other securities of the Corporation as a
dividend or distribution on the Common Stock, or (ii) the Corporation effects a
share split or share combination of the Common Stock, (each, an “Adjustment
Event”), then the Corporation shall adjust the Initial Conversion Rate or
Applicable Conversion Rate, as applicable, or other terms of the Junior
Preferred Stock in effect immediately prior to such event so that each Holder of
shares of Junior Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the number of  shares of Common Stock that such
Holder would have owned or would have been entitled to receive upon or by reason
of any of the events described above, had such shares of the Junior Preferred
Stock been converted into shares of Common Stock immediately prior to the
occurrence of such event.  An adjustment made pursuant to this Section
II(b) shall become effective retroactively (x) in the case of any such dividend
or distribution, to the day immediately following the close of business on the
Record Date for the determination of holders of Common Stock entitled to receive
such dividend or distribution or (y) in the case of any such subdivision, split,
combination or reclassification, to the close of business on the day upon which
such corporate action becomes effective.

     

    (c)           Shares
of Junior Preferred Stock shall be converted into shares of Common Stock in
accordance with the following procedures:

     

    (i)           At
all times after the Stockholder Approval, a Convertible Holder may exercise a
conversion right by the delivery of a Conversion Notice to the office of the
Transfer Agent during normal business hours and (if so required by the
Corporation or the Transfer Agent) an instrument of transfer, in form
satisfactory to the Corporation and to the Transfer Agent, duly executed by such
Convertible Holder or his duly authorized attorney, and funds in the amount of
any applicable transfer tax (unless provision satisfactory to the Corporation is
otherwise made therefor), if required pursuant to Section
II(c)(iii).

     

    
      
         


      

      
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    (ii)           As
promptly as practicable after the delivery of a Conversion Notice and the
payment in cash of any amount required by the provisions of Sections 2(c)(i) and
2(c)(iii), the Corporation will deliver or cause to be delivered at the office
of the Transfer Agent to or upon the written order of the Convertible Holder,
certificates or a confirmation of book-entry transfer of shares representing the
number of fully paid and non-assessable shares of Common Stock issuable upon
such conversion, issued in such name or names as the Convertible Holder may
direct. Such conversion shall be deemed to have been made immediately prior to
the close of business on the date of the delivery of the Conversion Notice, and
all rights of the Convertible Holder shall cease with respect to such shares of
Junior Preferred Stock at such time and the Person or Persons in whose name or
names the shares of Common Stock issued upon conversion are to be issued shall
be treated for all purposes as having become the record holder or holders of
such shares of Common Stock at such time; provided, however, that any delivery
of a Conversion Notice and payment on any date when the stock transfer books of
the Corporation shall be closed shall constitute the Person or Persons in whose
name or names the shares of Common Stock are to be issued as the record holder
or holders thereof for all purposes immediately prior to the close of business
on the next succeeding day on which such stock transfer books are
open.

     

    (iii)           The
issuance of shares of Common Stock upon conversion of shares of Junior Preferred
Stock shall be made without charge for any stamp or other similar tax in respect
of such issuance. However, if any such shares to be issued upon conversion are
to be issued in a name other than that of the Holder of the share or shares of
Junior Preferred Stock converted, the person or persons requesting the issuance
thereof shall pay to the Corporation the amount of any tax which may be payable
in respect of any transfer involved in such issuance, or shall establish to the
satisfaction of the Corporation that such tax has been paid.

     

    (iv)           No
fractional shares of Common Stock or scrip shall be issued upon conversion of
shares of Junior Preferred Stock. If more than one share of Junior Preferred
Stock shall be surrendered for conversion at any one time by the same Holder,
the number of full shares of Common Stock issuable upon conversion thereof shall
be computed on the basis of the aggregate number of shares of Junior Preferred
Stock so surrendered. Instead of any fractional shares of Common Stock that
would otherwise be issuable upon conversion of any shares of Junior Preferred
Stock, the Corporation shall pay to the Holder an amount in cash in respect of
such fractional interest equal to the value of such fractional interest based on
the closing sales price of the Common Stock on such national securities exchange
or automated quotation system on which the Common Stock is then listed or
authorized for quotation or, if the Common Stock is not so listed or authorized
for quotation, an amount determined in good faith by the Board to be the fair
value of the Common Stock at the close of business on the business day
immediately preceding the applicable Conversion Date.

     

    (v)           At
all times after the Stockholder Approval, the Corporation shall be required to
reserve or keep available, out of its authorized but unissued Common Stock, or
have sufficient authorized Common Stock to cover, the shares of Common Stock
deliverable upon the conversion of the Junior Preferred Stock  The
Corporation shall take all action necessary so that all shares of Common Stock
that may be issued upon conversion of shares of Junior Preferred Stock will upon
issue be validly issued, fully paid and nonassessable, and free from all liens
and charges in respect of the issuance or delivery thereof.

     

    
      
         


      

      
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    (d)           From
and after a Conversion Date, dividends hereunder shall no longer accrue with
respect to shares of Junior Preferred Stock converted on such date, and such
converted shares of Junior Preferred Stock shall cease to be outstanding,
subject to the rights of Holders of such Junior Preferred Stock to receive any
previously accrued and unpaid dividends on such shares and any other payments to
which they are otherwise entitled pursuant to Section III or Section
VI.

     

    Section
III.       
     Dividend Rights

     

    (a)           From
and after the Issue Date, (i) Holders shall be entitled to receive, when, as and
if declared by the Board or any duly authorized committee of the Board, but only
out of assets legally available therefor, all dividends or other distributions
in the form of cash or assets (other than shares of Common Stock) declared and
paid or made in respect of the shares of Common Stock, at the same time and on
the same terms as holders of Common Stock, in an amount per one-hundredth of a
share of Junior Preferred Stock equal to the product of (A) the Applicable
Conversion Rate then in effect and (B) any per share dividend or other
distribution in the form of cash or assets (other than shares of Common Stock)
declared and paid or made in respect of each share of Common Stock (the “Common
Equivalent Dividend Amount”), and (ii) no cash dividend or other cash
distribution shall be declared and paid or made in respect of Common Stock
unless the Board or any duly authorized committee of the Board declares and pays
to Holders of the Junior Preferred Stock, at the same time and on the same terms
as holders of Common Stock, the Common Equivalent Dividend Amount per
one-hundredth of a share of Junior Preferred Stock. Notwithstanding any
provision in this Section III(a) to the contrary, Holders of the Junior
Preferred Stock shall not be entitled to receive any dividend or other
distribution in the form of cash or assets (other than shares of Common Stock)
paid or made with respect to the Common Stock after the Issue Date (x) if the
Record Date for determination of holders of Common Stock entitled to receive
such dividend or distribution occurs prior to the Issue Date, or (y) with
respect to shares of Junior Preferred Stock converted on or prior to such Record
Date.

     

    (b)           Each
dividend or other distribution pursuant to Section III(a) above will be payable
to Holders of record of Junior Preferred Stock as they appear in the records of
the Corporation at the close of business on the Record Date for the
corresponding dividend or distribution to the holders of shares of Common
Stock.

     

    (c)           To
the extent the Corporation declares dividends on the Junior Preferred Stock and
Common Stock but does not make full payment of such declared dividends, the
Corporation will allocate the dividend payments on a pro rata basis among the
holders of shares of Junior Preferred Stock and the holders of Common Stock so
that the amount of dividends actually paid per share on the Junior Preferred
Stock and Common Stock shall in all cases bear to each other the same ratio as
the then Applicable Conversion Rate. The foregoing right shall not be cumulative
and shall not in any way create any claim or right in favor of Holders in the
event that dividends have not been declared or paid in respect of any prior
calendar quarter.

     

    (d)           Holders
of Junior Preferred Stock shall not be entitled to any dividends, whether
payable in cash, securities or other property, on the Junior Preferred Stock
other than dividends (if any) declared and payable on Junior Preferred Stock as
specified in this Section III and dividends of Common Stock or other securities
of the Corporation pursuant to Section II(b).

     

    
      
         


      

      
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    (e)           Notwithstanding
any provision in this Certificate of Designation to the contrary, Holders of
Junior Preferred Stock shall not be entitled to receive any dividends with
respect to any such shares converted into Common Stock, except to the extent
that any such dividends have been declared by the Board or any duly authorized
committee of the Board (and the Record Date for such dividend occurs) after the
Issue Date and prior to the applicable Conversion Date of such
shares.

     

    Section
IV.             Voting

     

    (a)           Shares
of Junior Preferred Stock shall have no voting rights except as set forth in
Section IV(b) or as otherwise required by Georgia law from time to time. In
exercising the voting rights set forth in Section IV(b), each Holder shall be
entitled to one vote for each share of Junior Preferred Stock held by such
Holder.

     

    (b)           So
long as any shares of Junior Preferred Stock remain outstanding, unless a
greater percentage shall then be required by law, the Corporation shall not,
without the affirmative vote or written consent of the Holders (voting or
consenting separately as one class) of at least a majority of the outstanding
shares of Junior Preferred Stock, amend, alter or repeal or otherwise change
(including in connection with any merger, consolidation or other similar
transaction) any provision of the Articles of Incorporation, including this
Certificate of Designation, if the amendment, authorization or repeal would
significantly and adversely affect the rights or preferences of the Junior
Preferred Stock.  Notwithstanding the foregoing, except as otherwise
required by law, the Corporation may, without the consent of any Holder,
authorize, increase the authorized amount of, or issue shares of Senior Stock or
Parity Stock, and in taking such actions, the Corporation shall not be deemed to
have significantly adversely affected the existing terms of the Junior Preferred
Stock.

     

    Section
V.              Liquidation

     

    (a)           In
the event of any liquidation, dissolution or winding up of the affairs of the
Corporation, whether voluntary or involuntary, which occurs while any Junior
Preferred Stock remains outstanding (each a “Liquidation
Event”), Holders of shares of Junior Preferred Stock shall, subject to
the prior rights of any holders of Senior Stock, be entitled to receive and be
paid out of the assets of the Corporation available for distribution to its
stockholders, for each such share (or fraction thereof), a liquidating
distribution in an amount equal to that received by holders of the Common Stock
for each share of Common Stock into which such share of Junior Preferred Stock
(or fraction thereof) was convertible at the Applicable Conversion Rate
immediately prior to such Liquidation Event.

     

    (b)           If,
in any distribution described in Section V(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 Junior Preferred Stock and the
corresponding amounts payable with respect to the Common Stock or any other
Parity Stock as to such distribution, Holders of Junior Preferred Stock and the
holders of Common Stock or any other Parity Stock shall share ratably in any
such distribution in proportion to the full respective distributions to which
they are entitled.

     

    (c)           For
purposes of this Section V, neither the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation (other than in
connection with the voluntary or involuntary liquidation, winding up or
dissolution of the Corporation) nor the merger, consolidation or any other
business combination transaction of the Corporation into or with any other
corporation or Person shall be deemed to be a voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Corporation.

     

    
      
         


      

      
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    (d)           In
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the Corporation shall, within ten (10) days after the date
the Board approves such action, or at least twenty (20) days prior to any
stockholder’s meeting called to approve such action, if applicable, or within
twenty (20) days after the commencement of any involuntary proceeding, whichever
is earlier, give each Holder initial written notice of the proposed
action.  Such initial written notice shall describe the material terms
and conditions of such proposed action.

     

    Section
VI.             Adjustments
for Change of Control

     

    (a)         
  Upon the
occurrence of a Change of Control (as defined herein) while any shares of Junior
Preferred Stock remain outstanding, each share of Junior Preferred Stock (or
fraction thereof) outstanding immediately prior to such Change of Control shall,
without the consent of Holders, become convertible into the types and amounts of
securities, cash, and other property that is or was receivable in such Change of
Control by a holder of the number of shares of Common Stock into which such
share of Junior Preferred Stock (or fraction thereof) was convertible
immediately prior to such Change of Control (such securities, cash, and other
property, the “Exchange
Property”);
provided,
however,
that if receipt of the Exchange Property would  cause the Holder to
the Holder to acquire control of a bank, as “control” is defined in Section
2(a)(2) of the Bank Holding Company Act of 1956, as amended, and the
implementing regulations of the Board of Governors of the Federal Reserve
System, require the Holder to file a Change in Bank Control Act notice or
require the Holder to make any similar regulatory filing, proper provision shall
be made for such Holder to receive shares of non-voting securities in lieu of
any voting securities included in the Exchange Property, the terms of which
non-voting securities shall be as nearly equivalent as practicable to those of
the Junior Preferred Stock.

     

    (b)        
   A “Change
of Control” shall mean:

     

     (i)  an
acquisition of more than fifty percent (50%) of the equity securities of the
Corporation (measured by vote or value) by means of merger or other form of
corporate reorganization in which outstanding shares of the Corporation are
exchanged for securities or other consideration issued, or caused to be issued,
by the Acquiring Person (as defined below) or its Parent, Subsidiary or
Affiliate (each as defined in Rule 12b-2 of the Exchange
Act);

     

     (ii)  a
sale or other disposition of all or substantially all of the assets of the
Corporation (on a consolidated basis) in a single transaction or series of
related transactions;

     

     (iii)  any
tender offer, exchange offer, stock purchase or other transaction or event or
series of related transactions or events by or involving the Corporation in
which a single entity or group becomes the direct or indirect owner of more than
fifty percent (50%) of the equity securities of the Corporation (measured by
vote or value);

     

     (iv) a capital
reorganization or reclassification of the Common Stock or other
securities.

     

    Notwithstanding
anything contained herein to the contrary, a change in the state of
incorporation of the Corporation shall not in and of itself constitute a Change
of Control.

     

    
      
         


      

      
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    (c)           “Acquiring
Person” means, in connection with any Change of Control any of the
following, at the Holder’s election, (i) the continuing or surviving Person of a
consolidation or merger with the Corporation (if other than the Corporation),
(ii) the transferee of all or substantially all of the properties or assets of
the Corporation, (iii) the corporation consolidating with or merging into the
Corporation in a consolidation or merger in connection with which the Common
Stock is changed into or exchanged for stock or other securities of any other
Person or cash or any other property, (iv) the entity or group acting in concert
acquiring or possessing the power to cast the majority of the eligible votes at
a meeting of the Corporation’s stockholders at which directors are elected, or,
(v) in the case of a capital reorganization or reclassification, the
Corporation, or (vi) at the Holder’s election, any Person that (x) controls the
Acquiring Person directly or indirectly through one or more intermediaries, (y)
is required to include the Acquiring Person in the consolidated financial
statements contained in such Person’s Annual Report on Form 10 K (if such Person
is required to file such a report) or would be required to so include the
Acquiring Person in such Person’s consolidated financial statements if they were
prepared in accordance with U.S. generally accepted accounting principles and
(z) is not itself included in the consolidated financial statements of any other
Person (other than its consolidated subsidiaries).

     

    (d)           If
holders of shares of Common Stock have the opportunity to elect the form of
consideration to be received in a Change of Control, the Holders of Junior
Preferred Stock shall be entitled to receive the same
election.

     

    (e)           The
Corporation (or any successor) shall, within 20 days of the occurrence of any
Change of Control or, if earlier, the date on which similar notice is given to
holders of Common Stock, provide written notice to the Holders of such
occurrence and of the type and amount of the cash, securities or other property
that constitutes the Exchange Property.  Failure to deliver such
notice shall not affect the operation of this Section VI.

     

    Section
VII.            Reports
as to Adjustments

     

    Whenever
the number of shares of Common Stock into which the shares of Junior Preferred
Stock are convertible is adjusted as provided in Section II(b), the Corporation
shall, as soon as is reasonable practicable, compute such adjustment and furnish
to the Holders a certificate of the Corporation, setting forth the number of
shares of Common Stock into which each share of Junior Preferred Stock (or
fraction thereof) is convertible as a result of such adjustment, a brief
statement of the facts requiring such adjustment, the computation thereof and
when such adjustment will become effective.

     

    Section
VIII.          Transfer
Restrictions

     

    Shares of
Junior Preferred Stock may not be transferred to any Person other than pursuant
to a Permitted Transfer, and any attempt to transfer one or more shares of
Junior Preferred Stock (or fraction thereof) to a Person other than pursuant to
a Permitted Transfer shall be void and of no effect.

     

    Section
IX.             Exclusion
of Other Rights

     

    Except as
may otherwise be required by law, shares of Junior Preferred Stock shall not
have any powers, preferences, participation and other special rights,
qualifications, limitations, restrictions and other designations, other than
those specifically set forth herein (as this Certificate of Designation may be
amended from time to time) and in the Articles of Incorporation. The shares of
Junior Preferred Stock shall have no preemptive or subscription
rights.

     

    
      
         


      

      
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    Section
X.              Severability
of Provisions

     

    If any
powers, preferences, participation and other special rights, qualifications,
limitations, restrictions and other designations of the Junior Preferred Stock
set forth in this Certificate of Designation (as this Certificate of Designation
may be amended from time to time) is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other powers,
preferences, participation and other special rights, qualifications,
limitations, restrictions and other designations of the Junior Preferred Stock
set forth in this Certificate of Designation (as so amended) which can be given
effect without the invalid, unlawful or unenforceable powers, preferences,
participation and other special rights, qualifications, limitations,
restrictions and other designations of the Junior Preferred Stock shall,
nevertheless, remain in full force and effect, and no powers, preferences,
participation and other special rights, qualifications, limitations,
restrictions and other designations of the Junior Preferred Stock herein set
forth shall be deemed dependent upon any other such powers, preferences,
participation and other special rights, qualifications, limitations,
restrictions and other designations of the Junior Preferred Stock unless so
expressed herein.

     

    Section
XI.             Rank

     

    Notwithstanding
anything set forth in the Articles of Incorporation or this Certificate of
Designation to the contrary, the Board or any authorized committee of the Board,
without the vote of Holders of the Junior Preferred Stock, may authorize and
issue additional shares of stock ranking junior or senior to, or on parity with,
the Junior Preferred Stock as to dividends and the distribution of assets upon
any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation or any other powers, preferences, participation and
other special rights, qualifications, limitations, restrictions and other
designations.

     

    Section
XII.            No
Redemption

     

    The
Corporation may not, at any time, redeem the outstanding shares of the Junior
Preferred Stock, except upon the unanimous consent of the Holders of all
outstanding shares of Junior Preferred Stock.

     

    Section
XIII.          Repurchases

     

    Subject
to the limitations imposed herein, the Corporation may purchase and sell shares
of Junior Preferred Stock (or fraction thereof) from time to time to such
extent, in such manner, and upon such terms as the Board or any duly authorized
committee of the Board may determine.

     

    Section
XIV.          No Sinking
Fund

     

    Shares of
Junior Preferred Stock are not subject to the operation of a sinking fund or any
similar provisions.

     

    Section
XV.          
Notices

     

    All
notices, requests and other communications to a Holder of Junior Preferred Stock
shall be in writing (including facsimile transmission) and shall be given at the
address of such Holder as shown on the books of the Corporation. A Holder of
Junior Preferred Stock may waive any notice required hereunder by a writing
signed before or after the time required for notice or the action in question.
Notice shall be deemed given on the earlier of the date received or three
business days after the date such notice is mailed by first-class mail, postage
prepaid.

     

     

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