Exhibit
4.1


 


CERTIFICATE OF DESIGNATIONS FOR 

SERIES A CONVERTIBLE PREFERRED STOCK

OF GUARANTY BANCORP


 










 


Pursuant
to Section 151 of the

General Corporation Law of the State of Delaware


 






 


Guaranty
Bancorp (the “Company”), a corporation organized and existing under the
General Corporation Law of the State of Delaware (the “DGCL”), does
hereby certify that, pursuant to authority conferred upon its Board of
Directors by the Company’s Amended and Restated Certificate of Incorporation,
and pursuant to the provisions of Section 151 of the DGCL, its Board of
Directors, at a meeting duly called and held on August 4, 2009, duly
approved and adopted the following resolution:


 


RESOLVED,
that, pursuant to the authority vested in the Board of Directors by the Company’s
Amended and Restated Certificate of Incorporation, the Board of Directors does
hereby create, authorize and provide for the issuance of Series A
Convertible Preferred Stock, par value $0.001 per share, with a stated value of
$1,000 per share, consisting of up to 73,280 shares, having the designations,
preferences, relative, participating, optional and other special rights and the
qualifications, limitations and restrictions that are set forth in the Company’s
Amended and Restated Certificate of Incorporation and in this Resolution as
follows:


 


Section 1.                                            Designation
and Regulatory Capital Treatment.  There is hereby created out of the authorized and
unissued shares of preferred stock of Guaranty Bancorp (the “Company”) a
series of preferred stock designated as the “Series A Convertible
Preferred Stock” (the “Series A Preferred Stock”).  The number of shares constituting such series
shall be 73,280.  Such series shall have
a par value per share of $0.001.


 


The Company hereby acknowledges and confirms that, notwithstanding the
treatment of the Series A Preferred Stock for purposes of the Delaware
General Corporation Law, 8 Del C. § 101 et seq.  (the “DGCL”),
for purposes of the risk-based and leverage capital guidelines of the Board of
Governors of the Federal Reserve System appearing at 12 C.F.R. Part 225
(Appendix A) and 12 C.F.R. Part 225 (Appendix B), as applicable, and for
purposes of subsequent regulatory reporting, the Series A Preferred Stock
constitutes cumulative preferred stock as described therein and is subject to
the limitations on cumulative preferred stock contained therein.


 


Section 2.                                            Definitions. 
The following terms have the meanings set forth below or in the section
cross-referenced below, as applicable, whether used in the singular or the plural:


 


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“Affiliate”
means, with respect to any Person, any Person directly or indirectly
controlling, controlled by or under common control with such other Person.


 


“Applicable
Regulatory Approval” means, with respect to a particular Holder, all
governmental, quasi-governmental, court or regulatory approvals, consents or
statements of non-objection necessary to allow such Holder to acquire the
shares of Common Stock issuable upon conversion of the Series A Preferred
Stock held by it or to own or control such shares of Common Stock (taking into
account Section 8(c), Section 9(g) and Section 9(h)) and
the expiration or earlier termination of any required waiting period, including
any approvals, consents or statements of non-objection required by any state or
federal banking regulatory authority.


 


“Board
of Directors” means the board of directors of the Company or, with respect
to any action to be taken by such board of directors, any committee of the
board of directors duly authorized to take such action.


 


“Business
Day” means any day other than a Saturday, a Sunday or a day on which banks
are required or permitted by law or executive order to be closed in the State
of New York or Colorado.


 


“Castle
Creek” means Castle Creek Capital Partners III, L.P.


 


“Certificate
of Designations” means this Certificate of Designations of the Series A
Preferred Stock.


 


“Certificate
of Incorporation” means the Amended and Restated Certificate of
Incorporation of the Company, as amended prior to the Issue Date and as amended
by this Certificate of Designations and as may be further amended.


 


“Closing
Price” of the Common Stock (or any other securities, cash or other property
into which the Series A Preferred Stock becomes convertible in connection
with any Reorganization Event) on any Trading Day means the reported last sale
price per share (or, if no last sale price is reported, the average of the bid
and ask prices per share or, if more than one in either case, the average of the
average bid and the average ask prices per share) on such date as reported by
the NASDAQ Stock Market, or, if the Common Stock (or such other property) is
not listed on the NASDAQ Stock Market, then as reported by the principal
national securities exchange on which the Common Stock (or such other property)
is listed, or if the Common Stock (or such other property) is not so listed or
quoted on a U.S. national securities exchange, or, if no closing price for the
Common Stock (or such property) is so reported, the last quoted bid price for
the Common Stock (or such property) in the over-the-counter market as reported
by Pink Sheets LLC or similar organization, or, if that bid price is not
available, the market price of the Common Stock (or such property) on that date
as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company. For the purposes of this Certificate
of Designations, all references herein to the closing sale price and the last
sale price reported of the Common Stock (or other property) on the NASDAQ Stock
Market shall be the closing sale price and last reported sale price as
reflected on the website of the NASDAQ Stock Market (www.nasdaq.com) and as
reported by Bloomberg Professional Service; provided


 


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that in the event that there is a discrepancy between
the closing price and the last reported sale price as reflected on the website
of the NASDAQ Stock Market and as reported by Bloomberg Professional Service,
the closing sale price and the last reported sale price on the website of the
NASDAQ Stock Market shall govern.


 


“Common
Stock” means the Company’s common stock, par value $0.001 per share.


 


“Company”
has the meaning set forth in the preamble.


 


“Conversion
Date” has the meaning set forth in Section 10(a).


 


“Conversion
Notice” has the meaning set forth in Section 9(b).


 


“Conversion
Price” means, for each share of Series A Preferred Stock, $1.80;
provided, however, that:


 


(i)                                     in the event of the
occurrence of an Unpaid Dividend as to a Dividend Payment Date (such Dividend
Payment Date, the “First Missed Dividend Date”) and the failure of the
Company to  pay such Unpaid Dividend by the Dividend Payment Date in the
twelfth calendar month after the First Missed Dividend Date (such Dividend
Payment Date, the “First Missed Dividend Adjustment Date”), the
Conversion Price shall decrease on the first Business Day following the First
Missed Dividend Adjustment Date by $0.04 with respect to the Unpaid Dividend
relating to the First Missed Dividend Date and by an additional $0.04 with
respect to  each Unpaid Dividend, if any, as to a Dividend Payment Date
after the First Missed Dividend Date to and including the First Missed Dividend
Adjustment Date;


 


(ii)                                  in the event of the
occurrence of an Unpaid Dividend as to a Dividend Payment Date after the First
Missed Dividend Adjustment Date, the Conversion Price shall decrease on the
first Business Day following such Dividend Payment Date by an additional $0.04;


 


(iii)                               in the event of the
occurrence of one or more Unpaid Dividends and the failure of the Company to
pay such Unpaid Dividends by the Mandatory Conversion Date, and provided that
such Unpaid Dividends have not by the Mandatory Conversion Date resulted in an
adjustment to the Conversion Price pursuant to clause (i) or (ii) above,
the Conversion Price shall be deemed to have decreased as of the first Business
Day immediately preceding the Mandatory Conversion Price by an additional $0.04
with respect to each such Unpaid Dividend;


 


(iv)                              the maximum adjustment
pursuant to clauses (i), (ii) and (iii) above is $0.30 and in no
event shall the downward adjustment of the Conversion Price pursuant to such
clauses exceed $0.30; and


 


(v)                                 notwithstanding clauses (i) through (iv) above,
in the event an adjustment in the Conversion Price occurs pursuant to Section 13,
contemporaneously with such 


 


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adjustment a
corresponding adjustment shall be made in the $0.04 and $0.30 amounts used in
this definition, including such amounts as they may previously have been
adjusted pursuant to this clause (v) (each a “Reference Amount”) so
that, after giving effect to such adjustment, each reference to the applicable
Reference Amount shall be to an adjusted amount that bears the same ratio to
the respective Reference Amount that the Conversion Price as adjusted pursuant
to Section 13 bears to $1.80 (or the then applicable Conversion Price).


 


“Conversion
Rate” means that number of Conversion Securities into which one share of Series A
Preferred Stock shall be convertible pursuant to Section 8(a) or
9(a), determined by dividing the Liquidation Preference by the Conversion
Price.


 


“Conversion
Securities” means shares of Common Stock, Non-Voting Common Stock or Series B
Preferred Stock, as the case may be, as determined pursuant to Section 9(h).


 


“Current
Market Price” means, on any date, the average of the daily Closing Price
per share of the Common Stock or other securities on each of the five
consecutive Trading Days preceding the earlier of the day before the date in
question and the day before the Ex-Date with respect to the issuance or
distribution giving rise to an adjustment to the Conversion Price pursuant to Section 13.


 


“DGCL”
has the meaning set forth in the preamble.


 


“Dividend
Payment Date” has the meaning set forth in Section 4(a)(i).


 


“Dividend
Period” has the meaning set forth in Section 4(a).


 


“Exchange
Property” has the meaning set forth in Section 16(a).


 


“Ex-Date”,
when used with respect to any issuance or distribution, means the first date on
which the Common Stock or other securities trade without the right to receive
the issuance or distribution giving rise to an adjustment to the Conversion
Price pursuant to Section 13.


 


“Holder”
means a Person in whose name the shares of the Series A Preferred Stock
are registered, which may be treated by the Company and the Transfer Agent as
the absolute owner of the shares of Series A Preferred Stock for the
purpose of making payment and settling conversions and for all other purposes.


 


“Investment
Agreement” means the Investment Agreement, dated as of May 6, 2009, by
and among the Company, Castle Creek, Patriot, Relational and the other
investors that may become party thereto from time to time, as it may be amended
from time to time.


 


“Issue
Date” means August 11, 2009, the original date of issuance of the Series A
Preferred Stock.


 


“Junior
Securities” has the meaning set forth in Section 3.


 


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“Liquidation
Preference” means, as to the Series A Preferred Stock, $1,000 per
share, plus all accrued but unpaid dividends thereon.


 


“Mandatory
Conversion Date” means the fifth anniversary of the Issue Date.


 


“Market
Disruption Event” means the occurrence or existence for more than one half
hour period in the aggregate on any Scheduled Trading Day for the Common Stock
(or any other securities, cash or other property into which the Series A
Preferred Stock becomes convertible in connection with any Reorganization
Event) of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the NASDAQ Stock Market or
otherwise) in the Common Stock (or such other property) or in any options,
contracts or future contracts relating to the Common Stock (or such other
property), and such suspension or limitation occurs or exists at any time
before 1:00 p.m. (New York City time) on such day.


 


“Non-Voting
Common Stock” means the non-voting Common Stock of the Company, par value
$0.001 per share, contemplated by Section 9(e) of the Investment
Agreement.


 


“Option
Dividend Termination Date” has the meaning set forth in Section 4(a)(i).


 


“Optional
Conversion Date” has the meaning set forth in Section 9(e).


 


“Optional
Convertibility Inception Date” means the earlier to occur of (i) the
date of the second anniversary of the Issue Date and (ii) the date of
consummation of a Reorganization Event.


 


“Parity
Securities” has the meaning set forth in Section 3.


 


“Patriot”
means, collectively, Patriot Financial Partners, L.P. and Patriot Financial
Partners Parallel, L.P.


 


“Person”
means an individual, corporation, partnership, association, joint stock
company, limited liability company, joint venture, trust, governmental entity,
unincorporated organization or other legal entity.


 


“PIK
Dividends” has the meaning set forth in Section 4(a)(i)(B).


 


“Relational”
means collectively Relational Investors Mid-Cap Fund I, L.P. and Relational
Investors Mid-Cap Fund II, L.P.


 


“Reorganization
Event” has the meaning set forth in Section 16(a)(iv).


 


“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on the
primary U.S. national securities exchange or market on which the Common Stock
is listed or, if the Common Stock is not listed on a U.S. national securities
exchange, on the principal other market on which the Common Stock is then
traded.


 


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“Senior
Securities” means any shares or equity securities that rank, with respect
to dividend rights and rights on liquidation, winding up and dissolution of the
Company, senior to the Series A Preferred Stock.


 


“Series A
Preferred Stock” has the meaning set forth in Section 1.


 


“Series B
Preferred Stock” means the series of the Company’s preferred stock as
contemplated by Section 9(e) of the Investment Agreement.


 


“Trading
Day” means any day on which (i) there is no Market Disruption Event
and (ii) the NASDAQ Stock Market is open for trading, or, if the Common
Stock (or any other securities, cash or other property into which the Series A
Preferred Stock becomes convertible in connection with any Reorganization
Event) is not listed on the NASDAQ Stock Market, any day on which the principal
national securities exchange on which the Common Stock (or such other property)
is listed is open for trading, or, if the Common Stock (or such other property)
is not listed on a national securities exchange, any Business Day. A “Trading
Day” only includes those days that have a scheduled closing time of 4:00 p.m.
(New York City time) or the then standard closing time for regular trading on
the relevant exchange or trading system.


 


“Transfer
Agent” means Computershare Investor Services, LLC, the Company’s duly
appointed transfer agent, registrar, conversion and dividend disbursing agent
for the Series A Preferred Stock, or such other successor entity as the
Company may, in its sole discretion, appoint from time to time.


 


“Unpaid
Dividend” means the Company’s failure to declare and pay dividends (including
PIK Dividends or cash dividends) for any calendar quarter on the applicable
Dividend Payment Date for any reason, including but not limited to restrictions
under the DGCL or imposed by federal or state banking regulations or as may be
imposed in writing by the Company’s primary federal or state banking
regulators.


 


Section 3.                                            Ranking. 
The Series A Preferred Stock will, with respect to dividend rights
and rights on liquidation, winding-up and dissolution of the Company, rank (i) on
a parity with each other class or series of preferred stock established after
the Issue Date by the Company the terms of which expressly provide that such
class or series will rank on a parity with the Series A Preferred Stock as
to dividend rights and rights on liquidation, winding-up and dissolution of the
Company (collectively referred to as “Parity Securities”) and (ii) senior
to the Common Stock and each other class or series of capital stock outstanding
or established after the Issue Date by the Company the terms of which do not
expressly provide that it ranks on a parity with or senior to the Series A
Preferred Stock as to dividend rights and rights on liquidation, winding-up and
dissolution of the Company (collectively referred to as “Junior Securities”).  The Company has the right to authorize or
issue additional shares or classes or series of Junior Securities or Parity
Securities without the consent of the Holders subject to Section 6(b).


 


Section 4.                                            Dividends.


 


(a)                                  The Holders shall be entitled to receive
with respect to each share of Series A Preferred Stock:


 


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(i)                                     from and after the Issue Date until the
first Dividend Payment Date (as defined below) following the second anniversary
of the Issue Date (the “Option Dividend Termination Date”), when, as and
if declared by the Board of Directors, but only out of funds legally available
therefor, dividends (subject to Section 4(b) below) on each February 15,
May 15, August 15 and November 15, beginning on the first such
date following the Issue Date (each, a “Dividend Payment Date”), at a
rate per annum equal to 9.0% of the Liquidation Preference of each such share,
payable at the Company’s option with respect to each Dividend Period either in (A) cash
or (B) additional shares of Series A Preferred Stock (“PIK
Dividends”) (provided that, to the extent payment of PIK Dividends on any
Holder’s shares of Series A Preferred Stock, taken as a whole, would
result in the payment of a fractional share of Series A Preferred Stock to
such Holder, such fractional share shall instead be paid in cash); and


 


(ii)                                  from and after the Option Dividend
Termination Date, when, as and if declared by the Board of Directors, but only
out of funds legally available therefor, cash dividends (subject to Section 4(b) below)
at a rate per annum equal to 9.0% of the Liquidation Preference of each such
share, payable in arrears on each Dividend Payment Date.  If any Dividend Payment Date is not a
Business Day, then dividends will be payable on the first Business Day
following such date and dividends shall accrue to the actual payment date.


 


The term “Dividend Period” means each period from and including
a Dividend Payment Date (or the Issue Date in the case of the first Dividend
Period) to but excluding the next Dividend Payment Date. The amount of
dividends payable for any Dividend Period shall be computed on the basis of a
360-day year consisting of twelve 30-day months.


 


(b)                                 To the extent that any such dividends
payable on the shares of Series A Preferred Stock on any Dividend Payment
Date are not declared and paid, in full or otherwise, on such Dividend Payment
Date, then such unpaid dividends shall not cumulate and shall cease to accrue
and be payable and the Company shall have no obligation to pay, and the Holders
shall have no right to receive, dividends accrued for the Dividend Period
ending immediately prior to such Dividend Payment Date after such Dividend
Payment Date, whether or not dividends are declared for any subsequent Dividend
Period with respect to Series A Preferred Stock, Parity Securities, Junior
Securities or any other class or series of capital stock or authorized
preferred stock of the Company.  Holders
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full dividends for each Dividend Period on the Series A
Preferred Stock. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or failure to make any dividend
payment.


 


(c)                                  Each dividend will be payable to Holders
of record as they appear in the records of the Company at the close of business
on the January 31, April 30, July 31 and October 31
immediately preceding the corresponding Dividend Payment Date.


 


Section 5.                                            Payment Restrictions. 
During any time that any shares of Series A Preferred Stock are
outstanding, the Company shall not (i) declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, or pay or make available monies for the
redemption of, any Common Stock or other Junior Securities, or (ii) redeem,
purchase or acquire, or make a liquidation payment with respect to, or pay or
make available monies for the redemption of, any Parity Securities (otherwise than



 


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pursuant to pro
rata offers to purchase all or any pro rata portion of such Parity Securities
and the Series A Preferred Stock), unless in each case full dividends on
all outstanding shares of the Series A Preferred Stock have been paid or
(in the case of current dividends) declared and set aside for payment (except
for (w) dividends or distributions paid in shares of, or options, warrants
or rights to subscribe for or purchase shares of, Common Stock or other Junior
Securities, (x) redemptions or purchases by conversion or exchange of
Junior Securities for or into other Junior Securities, or of Parity Securities
for or into other Parity Securities or Junior Securities, (y) purchases by
the Company or its Affiliates as a broker, dealer, advisor, fiduciary, trustee
or comparable capacity in connection with transactions effected by or for the
account of customers of the Company or customers of any of its subsidiaries or
in connection with the distribution or trading of such capital stock and (z) acquisitions
of shares of Common Stock in respect of exercises of employee equity awards or
any related tax withholding).  When
dividends are not paid in full (or declared and a sum sufficient for such full
payment is not so set apart) for any Dividend Period on the Series A
Preferred Stock and any Parity Securities, dividends declared on the Series A
Preferred Stock and Parity Securities (whether cumulative or non-cumulative)
shall only be declared pro rata so that the amount of dividends declared per
share on the Series A Preferred Stock and such Parity Securities shall in
all cases bear to each other the same ratio that accrued dividends per share on
the shares of the Series A Preferred Stock (but without, in the case of
any non-cumulative preferred stock, accumulation of unpaid dividends for prior
Dividend Periods) and such Parity Securities bear to each other.


 


Section 6.                                            Voting Rights.


 


(a)                                  The Holders of the Series A
Preferred Stock shall vote together with the holders of Common Stock on all
matters upon which the holders of Common Stock are entitled to vote. Each share
of Series A Preferred Stock shall be entitled to such number of votes as
the number of shares of Common Stock into which such share of Series A
Preferred Stock is convertible pursuant to the Conversion Rate at the time of
the record date for any such vote (taking into account Section 9(h) hereof,
provided that solely for the purposes of determining the number of votes to
which each share of Series A Preferred Stock is entitled pursuant to this Section 6(a),
the Conversion Price utilized in the definition of Conversion Rate shall be
deemed to be $2.00, subject to adjustment in accordance with the provisions of Section 13
with the exception of subsection (b) thereof), and for the purpose of such
calculation, shares of Common Stock sufficient for the full conversion of all
shares of Series A Preferred Stock shall be deemed to be authorized for
issuance under the Certificate of Incorporation on such date and shall be
included in such calculation.


 


(b)                                 So long as any shares of Series A
Preferred Stock are outstanding, the vote or consent of the Holders of a
majority of the shares of Series A Preferred Stock at the time
outstanding, voting as a single class with all other classes and series of
Parity Securities having similar voting rights then outstanding and with each
series or class having a number of votes proportionate to the aggregate
liquidation preference of the outstanding shares of such class or series, given
in person or by proxy, either in writing without a meeting or by vote at any
meeting called for the purpose, will be necessary to effect or validate:


 


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(i)                                     any amendment, alteration or repeal of
any provision of the Certificate of Incorporation (including this Certificate
of Designations) that would alter or change the voting powers, preferences or
special rights of the Series A Preferred Stock or any Parity Security;


 


(ii)                                  any amendment or alteration of the
Certificate of Incorporation (including this Certificate of Designations) to
authorize, create or increase, or to obligate the Company to authorize, issue
or increase, the authorized amount of any Senior Securities that are
convertible into shares of Common Stock; or


 


(iii)                               any merger or consolidation of the
Company with or into any entity other than a corporation, or any merger or
consolidation of the Company with or into any other corporation unless the
surviving or resulting corporation, or a corporation controlling such
corporation that issues shares or other securities in such merger or
consolidation, will thereafter have no class or series of shares or other
securities either authorized or outstanding ranking prior to the Series A
Preferred Stock in the payment of dividends or in the distribution of assets on
any liquidation, dissolution or winding up, except the same number of shares
and the same amount of other securities with the same voting powers,
preferences and special rights as the shares and securities of the Company
respectively authorized and outstanding immediately before such merger or
consolidation, and each share of Series A Preferred Stock outstanding
immediately before such merger or consolidation is changed thereby into the
same number of shares, with the same voting powers, preferences and special
rights, of such corporation;


 


provided, however, that if any such amendment, alteration or repeal
described above would adversely affect one or more but not all series of preferred
stock with like voting rights (including the Series A Preferred Stock for
this purpose), then only the series affected and entitled to vote shall vote as
a class in lieu of all such series of preferred stock.


 


(c)                                  Notwithstanding anything to the contrary
herein, Holders shall not have any voting rights if, at or prior to the
effective time of the act with respect to which such vote would otherwise be
required, all outstanding shares of Series A Preferred Stock shall have
been converted in accordance with the terms of this Certificate of
Designations.


 


Section 7.                                            Liquidation.


 


(a)                                  In the event the Company voluntarily or
involuntarily liquidates, dissolves or winds up, subject to the rights of any
creditors of the Company or any holders of Senior Securities or Parity
Securities, the Holders at the time shall be entitled to receive liquidating
distributions per share of Series A Preferred Stock in an amount equal to
the greater of (i) the amount of the Liquidation Preference per share of Series A
Preferred Stock and (ii) the amount that the Holders would have received
in respect of the Conversion Securities issuable upon conversion of such share
of Series A Preferred Stock had they converted such share of Series A
Preferred Stock immediately prior to such event, in each case out of assets
legally available for distribution to the Company’s stockholders, before any
distribution of assets is made to the holders of the Common Stock, any other
Conversion Securities or any other Junior Securities.  After payment of the full amount of such
liquidating distributions, Holders of the Series A Preferred Stock shall
have no right or claim to any of the remaining assets of the Company.


 


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(b)           In the event the assets of the
Company available for distribution to stockholders upon any liquidation,
dissolution or winding-up of the affairs of the Company, whether voluntary or
involuntary, shall be insufficient to pay in full the amounts payable with
respect to all outstanding shares of the Series A Preferred Stock and the
corresponding amounts payable on any Parity Securities, Holders and the holders
of such Parity Securities shall share ratably in any distribution of assets of
the Company in proportion to the full respective liquidating distributions to
which they would otherwise be respectively entitled.


 


(c)           The Company’s consolidation or merger
with or into any other entity, the consolidation or merger of any other entity
with or into the Company, or the sale of all or substantially all of the
Company’s property or business will not constitute its liquidation, dissolution
or winding up.


 


Section 8.               Automatic Conversion.


 


(a)           Subject to Sections 8(b) and
8(c), each share of Series A Preferred Stock shall automatically convert
(unless previously converted at the option of the Holder in accordance with Section 9)
on the Mandatory Conversion Date into a number of shares of Common Stock equal
to the Conversion Rate.


 


(b)           Notwithstanding anything to the
contrary in this Certificate of Designations, no conversion pursuant to this Section 8
with respect to shares of the Series A Preferred Stock of any Holder shall
occur unless, with respect to such Holder, the Applicable Regulatory Approval
has been obtained and remains in effect.


 


(c)           Notwithstanding anything to the
contrary in this Certificate of Designations, no conversion pursuant to this Section 8
with respect to shares of Series A Preferred Stock held by any Holder
shall be permitted to the extent such conversion would result in such Holder
owning, together with its Affiliates, more than 14.9% (or, in the cases of
Castle Creek and Patriot only, 19.9%) of the outstanding shares of Common Stock
after giving effect to such conversion. 
Those shares of Series A Preferred Stock which are not convertible
pursuant to the preceding sentence shall remain outstanding.


 


Section 9.               Early Conversion at the Option of the Holder.


 


(a)           Subject to Sections 9(f) and
9(g), beginning from the Optional Convertibility Inception Date until the
Mandatory Conversion Date, shares of the Series A Preferred Stock are
convertible, in whole or in part (unless previously converted at the option of
the Holder thereof pursuant to a notice delivered in accordance with Section 9(b)),
on the Optional Conversion Date into shares of Common Stock at the Conversion
Rate.


 


(b)           Any written notice of conversion (“Conversion
Notice”) pursuant to this Section 9 shall be duly executed by the
Holder, and specify:


 


(i)            the number of shares of Series A
Preferred Stock to be converted;


 


(ii)           the name(s) in which such Holder
desires the shares of Common Stock issuable upon conversion to be registered
and whether such shares of Common Stock are to be


 


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issued in
book-entry or certificated form (subject to compliance with applicable legal
requirements if any of such certificates are to be issued in a name other than
the name of the Holder);


 


(iii)          if certificates are to be issued, the
address to which such Holder wishes delivery to be made of such new
certificates to be issued upon such conversion; and


 


(iv)          any other transfer forms, tax forms or
other relevant documentation required and specified by the Transfer Agent, if
necessary, to effect the conversion.


 


(c)           If specified by the Holder in the
Conversion Notice that shares of Common Stock issuable upon conversion of the Series A
Preferred Stock shall be issued to a Person other than the Holder surrendering
the shares of Series A Preferred Stock being converted, then the Holder
shall pay or cause to be paid any transfer or similar taxes payable in
connection with the shares of Common Stock so issued.


 


(d)           Upon receipt by the Transfer Agent of
a completed and duly executed Conversion Notice, payment in compliance with Section 9(c),
if applicable, and surrender of a certificate representing share(s) of Series A
Preferred Stock to be converted (if held in certificated form), the Company
shall, within three Business Days or as soon as possible thereafter, issue and
shall instruct the Transfer Agent to register the number of shares of Common
Stock to which such Holder shall be entitled upon conversion in the name(s) specified
by such Holder in the Conversion Notice. 
If a Holder elects to hold its shares of Common Stock issuable upon
conversion of the Series A Preferred Stock in certificated form, the
Company shall promptly send or cause to be sent, by hand delivery (with receipt
to be acknowledged) or by first-class mail, postage prepaid, to the Holder thereof,
at the address designated by such Holder in the Conversion Notice, a
certificate or certificates representing the number of shares of Common Stock
to which such Holder shall be entitled upon conversion.  In the event that there shall have been
surrendered a certificate or certificates representing shares of Series A
Preferred Stock, only part of which are to be converted, the Company shall
issue and deliver to such Holder or such Holder’s designee in the manner
provided in the immediately preceding sentence a new certificate or
certificates representing the number of shares of Series A Preferred Stock
that shall not have been converted.


 


(e)           The issuance by the Company of shares
of Common Stock upon a conversion of shares of Series A Preferred Stock
pursuant to this Section 9 shall be deemed effective immediately prior to
the close of business on the day (the “Optional Conversion Date”) of
receipt by the Transfer Agent of the Conversion Notice and other documents, if
any, set forth in Section 9(b), payment in compliance with Section 9(c),
if applicable, and the surrender by such Holder or such Holder’s designee of
the certificate or certificates representing the shares of Series A
Preferred Stock to be converted (if held in certificated form), duly assigned
or endorsed for transfer to the Company (or accompanied by duly executed stock
powers relating thereto).


 


(f)            Notwithstanding anything to the
contrary in this Certificate of Designations, no conversion pursuant to this Section 9
with respect to shares of the Series A Preferred Stock of any Holder shall
occur unless, with respect to such Holder, the Applicable Regulatory Approval
has been obtained and remains in effect.


 


A-11

















 


(g)           Notwithstanding anything to the
contrary in this Certificate of Designations, no conversion pursuant to this Section 9
with respect to shares of Series A Preferred Stock held by any Holder
shall be permitted to the extent such conversion would result in such Holder
owning, together with its Affiliates, more than 14.9% (or, in the cases of
Castle Creek and Patriot only, 19.9%) of the outstanding shares of Common Stock
after giving effect to such conversion. 
Those shares of Series A Preferred Stock which are not convertible
pursuant to the preceding sentence shall remain outstanding.


 


(h)           In the event that, as a result of the
payment or potential payment of any PIK Dividend contemplated by Section 4(a)(i)(B) or
the application of the proviso contained in the definition of Conversion Price,
the shares of Series A Preferred Stock held by any Holder and its
Affiliates would represent upon conversion more than 14.9% (or, in the cases of
Castle Creek and Patriot only, 19.9%) of the outstanding shares of Common Stock
after giving effect to such conversion and taking into consideration any shares
of Common Stock otherwise beneficially owned by such Holder or any of its
Affiliates (the number of shares of Series A Preferred Stock representing
shares of Common Stock upon conversion in excess of such percentage, the “Excess
Shares”), then for all purposes of Section 8 and this Section 9
such Excess Shares shall be convertible into a number of shares of Non-Voting
Common Stock or, if at such time the Company is not authorized pursuant to the
Certificate of Incorporation to issue shares of Non-Voting Common Stock, a
number of shares of Series B Preferred Stock in each case equivalent to
the number of shares of Common Stock into which such Excess Shares would
otherwise have been convertible (including, without limitation, taking into
account any adjustments to such number of shares of Common Stock that would
have been issuable in respect of the Excess Shares required by Section 13).  In such event, (i) each reference in Section 8
or this Section 9 to shares of Common Stock issuable upon conversion of
the Series A Preferred Stock shall be deemed a reference to the applicable
Conversion Security and (ii) for purposes of the adjustment provisions in Section 13,
the number of shares of Common Stock outstanding at any given point of time
shall include the number of shares of Non-Voting Common Stock or Series B
Preferred Stock then outstanding.


 


Section 10.             Conversion Procedures.


 


(a)           On the Mandatory Conversion Date or
any Optional Conversion Date (each, a “Conversion Date”), any shares of Series A
Preferred Stock converted to Conversion Securities shall cease to be
outstanding, in each case, subject to the right of Holders of such shares to
receive Conversion Securities into which such shares of Series A Preferred
Stock are convertible.


 


(b)           The Person or Persons entitled to
receive the Conversion Securities issuable upon any such conversion shall be
treated for all purposes as the record holder(s) of such Conversion
Securities as of the close of business on the applicable Conversion Date. No
allowance or adjustment, except as set forth in Section 13, shall be made
in respect of dividends payable to holders of Conversion Securities of record
as of any date prior to such applicable Conversion Date. Prior to such applicable
Conversion Date, Conversion Securities issuable upon conversion of any shares
of Series A Preferred Stock shall not be deemed outstanding for any
purpose, and Holders of shares of Series A Preferred Stock shall have no
rights with respect to Conversion Securities (including voting rights as
applicable, rights to respond to tender offers for the


 


A-12

















 


Conversion
Securities and rights to receive any dividends or other distributions on the
Conversion Securities) by virtue of holding shares of Series A Preferred
Stock.


 


(c)           Shares of Series A Preferred
Stock duly converted in accordance herewith, or otherwise reacquired by the
Company, shall resume the status of authorized and unissued preferred stock of
the Company, undesignated as to series and available for future issuance.


 


(d)           In the event that a Holder of shares
of Series A Preferred Stock shall not by written notice designate the name
in which Conversion Securities to be issued upon conversion of such Series A
Preferred Stock should be registered or the address to which the certificate or
certificates representing such Conversion Securities should be sent, the
Company shall be entitled to register such shares, and make such payment, in
the name of the Holder of such Series A Preferred Stock as shown on the
records of the Company and to send the certificate or certificates representing
such Conversion Securities to the address of such Holder shown on the records
of the Company.


 


Section 11.             Reservation of Conversion
Securities.


 


(a)           The Company shall at all times
reserve and keep available out of its authorized and unissued Conversion
Securities or shares held in the treasury of the Company, solely for issuance
upon the conversion of shares of Series A Preferred Stock as provided in
this Certificate of Designations, free from any preemptive or other similar
rights, such number of applicable Conversion Securities as shall from time to
time be issuable upon the conversion of all the shares of Series A Preferred
Stock then outstanding.  For purposes of
this Section 11(a), the number of Conversion Securities that shall be
deliverable upon the conversion of all outstanding shares of Series A
Preferred Stock shall be computed as if at the time of computation all such
outstanding shares were held by a single Holder.


 


(b)           Notwithstanding the foregoing, the
Company shall be entitled to deliver upon conversion of shares of Series A
Preferred Stock, as herein provided, Conversion Securities held in the treasury
of the Company (in lieu of the issuance of authorized and unissued Conversion
Securities), so long as any such treasury shares are free and clear of all
liens, charges, security interests or encumbrances (other than liens, charges,
security interests and other encumbrances created by the Holders).


 


(c)           All Conversion Securities delivered
upon conversion of the Series A Preferred Stock shall be duly authorized,
validly issued, fully paid and non-assessable, free and clear of all liens,
claims, security interests and other encumbrances (other than liens, charges,
security interests and other encumbrances created by the Holders).


 


(d)           Prior to the delivery of any
securities that the Company shall be obligated to deliver upon conversion of
the Series A Preferred Stock, the Company shall use its reasonable best
efforts to comply with all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any approval of or
consent to the delivery thereof by, any governmental authority.


 


(e)           The Company hereby covenants and
agrees that, if at any time the Common Stock shall be listed on the NASDAQ
Stock Market or any other national securities exchange or


 


A-13

















 


automated
quotation system, the Company shall, if permitted by the rules of such
exchange or automated quotation system, list and keep listed, so long as the
Common Stock shall be so listed on such exchange or automated quotation system,
all Common Stock issuable upon conversion of the Series A Preferred Stock;
provided, however, that if the rules of such exchange or automated
quotation system permit the Company to defer the listing of such Common Stock
until the first conversion of Series A Preferred Stock into Common Stock
in accordance with the provisions hereof, the Company covenants to list such
Common Stock issuable upon conversion of the Series A Preferred Stock in
accordance with the requirements of such exchange or automated quotation system
at such time.


 


Section 12.             Fractional Shares.


 


(a)           No fractional Conversion Securities
shall be issued as a result of any conversion of shares of Series A
Preferred Stock.


 


(b)           In lieu of any fractional Conversion
Security otherwise issuable to a Holder in respect of any conversion pursuant
to Section 8 or Section 9, the Company shall at its option either (i) issue
to such Holder a whole Conversion Security, or (ii) pay an amount in cash
(computed to the nearest cent) equal to such fraction times the average Closing
Price of the Common Stock for the five consecutive Trading Days ending on the
second Trading Day immediately preceding the applicable Conversion Date.


 


(c)           If more than one share of the Series A
Preferred Stock is surrendered for conversion at one time by or for the same
Holder, the number of full Conversion Securities issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares of the
Series A Preferred Stock so surrendered.


 


Section 13.             Anti-Dilution
Adjustments.


 


(a)           Except as provided in Section 13(c),
the Conversion Price shall be subject to the following adjustments:


 


(i)            Stock Dividends and Distributions. 
If the Company pays dividends or other distributions on the Common Stock
in shares of Common Stock, then the Conversion Price in effect immediately
prior to the Ex-Date for such dividend or distribution will be multiplied by
the following fraction:


 


     OS0      

OS1


 


Where,


 


OS0 =  the number of shares of Common Stock
outstanding immediately prior to Ex-Date for such dividend or distribution.


 


OS1 =  the sum of the number of shares of
Common Stock outstanding immediately prior to the Ex-Date for such dividend or
distribution plus the total number of shares of Common Stock constituting such
dividend or distribution.


 


A-14

















 


For the purposes of this clause (i), the number of shares of Common
Stock at the time outstanding shall not include treasury shares.  If any dividend or distribution described in
this clause (i) is declared but not so paid or made, the Conversion Price
shall be readjusted, effective as of the date the Board of Directors publicly
announces its decision not to make such dividend or distribution, to such
Conversion Price that would be in effect if such dividend or distribution had
not been declared.


 


(ii)           Subdivisions, Splits and Combination of
the Common Stock.  If the Company subdivides, splits or combines
the shares of Common Stock, then the Conversion Price in effect immediately
prior to the effective date of such share subdivision, split or combination
will be multiplied by the following fraction:


 


     OS0      

OS1


 


Where,


 


OS0 =
the number of shares of Common Stock outstanding immediately prior to the
effective date of such share subdivision, split or combination.


 


OS1 =
the number of shares of Common Stock outstanding immediately after the opening
of business on the effective date of such share subdivision, split or
combination.


 


For the purposes of this clause (ii), the number of shares of Common
Stock at the time outstanding shall not include treasury shares.  If any subdivision, split or combination
described in this clause (ii) is announced but the outstanding shares of
Common Stock are not subdivided, split or combined, the Conversion Price shall
be readjusted, effective as of the date the Board of Directors publicly
announces its decision not to subdivide, split or combine the outstanding
shares of Common Stock, to such Conversion Price that would be in effect if
such subdivision, split or combination had not been announced.


 


(iii)          Debt or Asset Distributions. 
If the Company distributes to all holders of shares of Common Stock
evidences of indebtedness, shares of capital stock, securities, cash or other
assets (excluding any dividend or distribution referred to in clause (i) above,
any dividend or distribution paid exclusively in cash, any consideration
payable in connection with a tender or exchange offer made by the Company or
any of its subsidiaries, and any dividend of shares of capital stock of any
class or series, or similar equity interests, of or relating to a subsidiary or
other business unit in the case of certain spin-off transactions as described
below), in exchange for consideration in an amount less than the fair market
value of the property so distributed then the Conversion Price in effect
immediately prior to the Ex-Date for such distribution will be multiplied by
the following fraction:


 


     SP0 – FMV     

SP0


 


Where,


 


SP0 =
the Current Market Price per share of Common Stock on such date.


 


A-15

















 


FMV = the fair market value of the portion of the distribution
applicable to one share of Common Stock on such date as determined by the Board
of Directors.


 


In a “spin-off,” where the Company makes a distribution to all holders
of shares of Common Stock consisting of capital stock of any class or series,
or similar equity interests of, or relating to, a subsidiary or other business
unit, the Conversion Price will be adjusted on the 15th Trading Day after the effective date of
the distribution by multiplying such Conversion Price in effect immediately
prior to such 15th Trading Day by the following fraction:


 


MP0      

MP0 +
MPS


 


Where,


 


MP0 =
the average of the Closing Prices of the Common Stock over the first ten
Trading Days commencing on and including the fifth Trading Day following the
effective date of such distribution.


 


MPS =
the average of the Closing Prices of the capital stock or equity interests
representing the portion of the distribution applicable to one share of Common
Stock over the first ten Trading Days commencing on and including the fifth
Trading Day following the effective date of such distribution, or, if not
traded on a national or regional securities exchange or over-the-counter
market, the fair market value of the capital stock or equity interests
representing the portion of the distribution applicable to one share of Common
Stock on such date as determined by the Board of Directors.


 


In the event that such distribution described in this clause (iii) is
not so paid or made, the Conversion Price shall be readjusted, effective as of
the date the Board of Directors publicly announces its decision not to pay or
make such dividend or distribution, to the Conversion Price that would then be
in effect if such dividend or distribution had not been declared.


 


(iv)          Cash Distributions. 
If the Company makes a distribution consisting exclusively of cash to
all holders of the Common Stock, excluding (a) any cash dividend on the
Common Stock to the extent a corresponding cash dividend is paid on the Series A
Preferred Stock pursuant to Section 4(a)(ii), (b) any cash that is
distributed in a Reorganization Event or as part of a “spin-off” referred to in
clause (iii) above, (c) any dividend or distribution in connection
with the Company’s liquidation, dissolution or winding up, and (d) any
consideration payable in connection with a tender or exchange offer made by the
Company or any of its subsidiaries, then in each event, the Conversion Price in
effect immediately prior to the Ex-Date for such distribution will be
multiplied by the following fraction:


 


      SP0 –
DIV     

SP0


 


Where,


 


A-16

















 


SP0 =
the Closing Price per share of Common Stock on the Trading Day immediately
preceding the Ex-Date.


 


DIV = the amount per share of Common Stock of the dividend or
distribution, as determined pursuant to the following paragraph.


 


In the event that any distribution described in this clause (iv) is
not so made, the Conversion Price shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to pay such
distribution, to the Conversion Price which would then be in effect if such
distribution had not been declared.


 


(v)           Self Tender Offers and Exchange Offers. 
If the Company or any of its subsidiaries successfully completes a
tender or exchange offer for the Common Stock where the cash and the value of
any other consideration included in the payment per share of the Common Stock
exceeds the Closing Price per share of the Common Stock on the Trading Day
immediately succeeding the expiration of the tender or exchange offer, then the
Conversion Price in effect at the close of business on such immediately
succeeding Trading Day will be multiplied by the following fraction:


 


       OS0 x SP 0        

AC + (SP0 x
OS1)


 


Where,


 


SP0 =
the Closing Price per share of Common Stock on the Trading Day immediately
succeeding the expiration of the tender or exchange offer.


 


OS0 =
the number of shares of Common Stock outstanding immediately prior to the
expiration of the tender or exchange offer, including any shares validly
tendered and not withdrawn.


 


OS1 =
the number of shares of Common Stock outstanding immediately after the
expiration of the tender or exchange offer.


 


AC = the aggregate cash and fair market value of the other
consideration payable in the tender or exchange offer, as determined by the
Board of Directors.


 


In the event that the Company, or one of its subsidiaries, is obligated
to purchase shares of Common Stock pursuant to any such tender offer or
exchange offer, but the Company, or such subsidiary, is permanently prevented
by applicable law from effecting any such purchases, or all such purchases are
rescinded, then the Conversion Price shall be readjusted to be such Conversion
Price that would then be in effect if such tender offer or exchange offer had
not been made.


 


(b)           The Company may make such decreases
in the Conversion Price, in addition to any other decreases required by this Section 13,
if the Board of Directors deems it advisable to avoid or diminish any income
tax to holders of the Common Stock resulting from any dividend or distribution
of shares of Common Stock (or issuance of rights or warrants to acquire shares
of


 


A-17

















 


Common Stock) or
from any event treated as such for income tax purposes or for any other reason.


 


(c)           (i) All adjustments to the
Conversion Price shall be calculated to the nearest 1/10 of a cent.  No adjustment in the Conversion Price shall
be required if such adjustment would be less than $0.01; provided, that any adjustments which
by reason of this subparagraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further, that on the
Mandatory Conversion Date adjustments to the Conversion Price will be made with
respect to any such adjustment carried forward and which has not been taken
into account before such date.


 


(ii)           No adjustment to the Conversion Price
shall be made if Holders may participate in the transaction that would
otherwise give rise to an adjustment, as a result of holding the Series A
Preferred Stock (including without limitation pursuant to Section 4(a)),
without having to convert the Series A Preferred Stock, as if they held
the full number of shares of Common Stock into which a share of the Series A
Preferred Stock may then be converted.


 


(iii)          The Conversion Price shall not be
adjusted:


 


(A)          upon the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on the Company’s securities and the investment of
additional optional amounts in shares of Common Stock under any plan;


 


(B)           upon the issuance of any shares of Common
Stock or rights or warrants to purchase those shares pursuant to any present or
future employee, director or consultant benefit plan or program of or assumed
by the Company or any of its subsidiaries;


 


(C)           upon the issuance of any shares of Common
Stock pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the Issue Date and not amended
thereafter;


 


(D)          for a change in the par value or no par
value of Common Stock; or


 


(E)           for accrued and unpaid dividends on the Series A
Preferred Stock, except to the extent set forth in the definition of Conversion
Price.


 


(d)           Whenever the Conversion Price is to
be adjusted in accordance with Section 13(a) or Section 13(b) (or
the definition of Conversion Price), the Company shall:  (i) compute the Conversion Price in
accordance with Section 13(a) or Section 13(b) (or the
definition of Conversion Price), taking into account the one-cent threshold set
forth in Section 13(c); (ii) as soon as reasonably practicable
following the occurrence of an event that requires an adjustment to the
Conversion Price pursuant to Section 13(a) or Section 13(b) (or
the definition of Conversion Price), taking into account the one cent threshold
set forth in Section 13(c) (or if the Company is not aware of such
occurrence, as soon as reasonably practicable after becoming so aware),
provide, or cause to be provided, a written notice to the Holders of the
occurrence of such event; and (iii) as soon as reasonably practicable
following the determination of the revised Conversion Price in accordance with Section 13(a) or
Section 13(b) (or the definition of


 


A-18

















 


Conversion Price),
provide, or cause to be provided, a written notice to the Holders setting forth
in reasonable detail the method by which the adjustment to the Conversion Price
was determined and setting forth the revised Conversion Price.


 


(e)           Notwithstanding anything to the
contrary in this Section 13 or otherwise in this Certificate of
Designations, the Company shall not take any action that would result in the
Conversion Price being adjusted to below the then par value (if any) of the
Conversion Securities deliverable upon conversion of the Series A
Preferred Stock.  Additionally, under no
circumstances will the number of Conversion Securities deliverable upon
conversion of the Series A Preferred Stock exceed (when taken together
with all other outstanding shares of Common Stock) the applicable number of
Conversion Securities that the Company is authorized to issue.


 


Section 14.             Replacement Certificates.


 


(a)           The Company shall replace any
mutilated stock certificate at the Holder’s expense upon surrender of such
stock certificate to the Company.  The
Company shall replace stock certificates that become destroyed, stolen or lost
at the Holder’s expense upon delivery to the Company of satisfactory evidence
that the stock certificate has been destroyed, stolen or lost, together with
any indemnity that may be required by the Company.


 


(b)           The Company shall not be required to
issue any stock certificates representing the Series A Preferred Stock on
or after the Mandatory Conversion Date, except for shares held by any Holder
pursuant to Section 8(c) or 9(g). 
In place of the delivery of a replacement certificate following the
Mandatory Conversion Date, the Company, upon delivery of the evidence and
indemnity described in clause (a) above, shall deliver the Conversion
Securities, or evidence of book-entry record ownership of such Conversion
Securities, pursuant to the terms of the Series A Preferred Stock formerly
evidenced by the certificate.


 


Section 15.             Redemptions.  The Series A Preferred Stock shall not
be redeemable either at the Company’s option or at the option of any Holder.


 


Section 16.             Reorganization
Events.


 


(a)           In
the event of:


 


(i)            any consolidation or merger of the
Company with or into another Person, in each case pursuant to which the Common
Stock will be converted into cash, securities or other property of the Company
or another Person,


 


(ii)           any sale, transfer, lease or conveyance
to another Person of all or substantially all of the property and assets of the
Company, in each case pursuant to which the Common Stock will be converted into
cash, securities or other property of the Company or another Person,


 


(iii)          any reclassification of the Common Stock
into securities including securities other than the Common Stock or


 


A-19

















 


(iv)          any statutory exchange of the outstanding
shares of Common Stock for securities of another Person (other than in
connection with a merger or acquisition) (any such event specified in
clauses (i) through (iv), a “Reorganization Event”),


 


each share of Series A Preferred Stock outstanding immediately
prior to such Reorganization Event shall, without the consent of Holders,
remain outstanding but shall become convertible, at the option of the Holders,
into the kind of securities, cash and other property receivable in such
Reorganization Event by the holder (excluding the counterparty to the
Reorganization Event or an affiliate of such counterparty) of that number of
shares of Common Stock into which the share of Series A Preferred Stock
would then be convertible assuming that on the date such option is exercised
the Applicable Regulatory Approval has been obtained and remains in effect and
disregarding for these purposes Section 9(h) (such securities, cash
and other property, the “Exchange Property”).


 


(b)           In the event that holders of the shares
of Common Stock have the opportunity to elect the form of consideration to be
received in such transaction, the consideration that the Holders are entitled
to receive shall be deemed to be the types and amounts of consideration
received by the majority of the holders of the shares of Common Stock that
affirmatively make an election.  The
amount of Exchange Property receivable upon conversion of any Series A
Preferred Stock in accordance with Section 8 shall be an amount equal to
the Conversion Price in effect on the Mandatory Conversion Date.


 


(c)           The above provisions of this Section 16
shall similarly apply to successive Reorganization Events and the provisions of
Section 13 shall apply to any shares of capital stock of the Company (or
any successor) received by the holders of the Common Stock in any such
Reorganization Event.


 


(d)           The Company (or any successor) shall,
within 20 days of the occurrence of any Reorganization Event, provide
written notice to the Holders of such occurrence of such event and of the kind
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 16.


 


Section 17.             No Impairment.  The
Company shall not amend its Certificate of Incorporation or participate in any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action for the purpose of avoiding
or seeking to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but shall at all times in good
faith assist in carrying out all such action as may be reasonably necessary or
appropriate in order to protect the conversion rights of the holders of the Series A
Preferred Stock against dilution or other impairment as provided herein.


 


Section 18.             Miscellaneous.


 


(a)           All notices referred to herein shall
be in writing, and, unless otherwise specified herein, all notices hereunder
shall be deemed to have been given upon the earlier of receipt thereof or three
Business Days after the mailing thereof if sent by registered or certified mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this


 


A-20

















 


Certificate of
Designations) with postage prepaid, addressed: 
(i) if to the Company, to its office at 1331 17th Street Suite 300,
Denver, CO 80202-1566, Attention:  Chief
Financial Officer, or (ii) if to any Holder, to such Holder at the address
of such Holder as listed in the stock record books of the Company, or (iii) to
such other address as the Company or any such Holder, as the case may be, shall
have designated by notice similarly given.


 


(b)           The Company shall pay any and all
stock transfer and documentary stamp taxes that may be payable in respect of
any issuance or delivery of shares of Series A Preferred Stock or
Conversion Securities or other securities issued on account of Series A
Preferred Stock pursuant hereto or certificates representing such shares or
securities.  The Company shall not,
however, be required to pay any such tax that may be payable in respect of any
transfer involved in the issuance or delivery of shares of Series A
Preferred Stock or Conversion Securities or other securities in a name other
than that in which the shares of Series A Preferred Stock with respect to
which such shares or other securities are issued or delivered were registered,
or in respect of any payment to any Person other than a payment to the
registered holder thereof, and shall not be required to make any such issuance,
delivery or payment unless and until the Person otherwise entitled to such
issuance, delivery or payment has paid to the Company the amount of any such
tax or has established, to the satisfaction of the Company, that such tax has
been paid or is not payable.


 


[Signature page follows]


 


A-21

















 


IN
WITNESS WHEREOF, the Company has caused this Designation to be signed by its
duly authorized officer, on August 11, 2009.


 


 


	
   

  	
  GUARANTY BANCORP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul W. Taylor

  
	
   

  	
   

  	
  Name:  Paul W. Taylor

  
	
   

  	
   

  	
  Title:    Executive Vice
  President, Chief

  Financial and Operating Officer and Secretary

  



 


 


[Signature Page to
Certificate of Designations]