ex4_1.htm


    
      

    

    
      Exhibit
4.1

      ARTICLES
OF AMENDMENT

      TO
THE

      AMENDED
AND RESTATED

      ARTICLES
OF INCORPORATION

      OF

      HABERSHAM
BANCORP

      


      1.

      


      The name
of the Corporation is Habersham Bancorp.

      


      2.

      


      The
Amended and Restated Articles of Incorporation of the Corporation are hereby
amended by inserting the following new Article 5B(1) immediately following
Article 5B:

      


      “ARTICLE
5B(1)

      


      Of the
foregoing class of Preferred Stock, the Corporation hereby designates the
rights, privileges, preferences, and limitations of  the Series A
Preferred Stock set forth below:

      


      SERIES A
NONCUMULATIVE PERPETUAL PREFERRED STOCK

      Relative
Rights and Preferences and Other Terms

      As
Designated By the Board of Directors

      


      1.           Designation and Initial
Number.  The class of shares of preferred stock hereby
authorized shall be designated “Series A Noncumulative Perpetual Preferred
Stock” (hereinafter, the “Series A Preferred Stock”).  The
initial number of authorized shares of the Series A Preferred Stock shall be
10,000 shares, no
par value.  Defined terms used herein shall have the meanings ascribed
to them in their context or in Section 10 hereof.

      


      2.           Rank.  The
Series A Preferred Stock will, with respect to dividend rights and rights on
liquidation, winding-up and dissolution, rank (i) on a parity with each
other class or series of capital stock (except for Common Stock) of the
Corporation, the terms of which do not expressly provide that such class or
series will rank either junior or senior to the Series A Preferred Stock as to
dividend rights and rights on liquidation, winding-up and dissolution of the
Corporation (collectively referred to as “Parity Securities”), (ii) senior
to the Corporation’s Common Stock and each other class or series of capital
stock of the Corporation, the terms of which expressly provide that it ranks
junior to the Series A Preferred Stock as to dividend rights and rights on
liquidation, winding-up and dissolution of the Corporation (collectively
referred to as “Junior Securities”), and (iii) junior to each other class
or series of capital stock of the Corporation, the terms of which expressly
provide that it ranks senior to the Series A Preferred Stock as to dividend
rights and rights on liquidation, winding-up and dissolution of the Corporation
(collectively, referred to as “Senior Securities”). The Corporation has the
right to authorize and issue additional shares or classes or series of Junior
Securities, Parity Securities or Senior Securities without the consent of the
Holders.


      
        
           


        

        
          1

          
            

          

        

        
           


        

      

       

      3.           Voting
Rights.  The Holders shall not be entitled to vote on any
matter except to the extent required by law.  On those matters on
which the Holders are entitled to vote, the Holders shall have the right to one
vote for each share of Series A Preferred Stock, shall be entitled to receive
notice of any shareholders meeting held to act upon such matters in accordance
with the Bylaws of the Corporation, and shall be entitled to vote in such manner
as provided by law.  Unless otherwise provided by law, the Holders
shall vote together with the holders of Common Stock as a single class, and not
as a separate class.

      


      
        	
                 
      

              	
                4.

              	
                Dividend
      Rights.

              


      

      


      (a)           From
and after the Effective Date, Holders shall be entitled to receive, when, as and
if declared by the Board of Directors, out of the funds legally available
therefor, non-cumulative cash dividends at an annual rate of 6.0% of the
Liquidation Preference (the “Dividends”).  Any Dividends will be
computed on the basis of a 360-day year of twelve 30-day months, and shall be
payable quarterly in arrears on March 31, June 30, September 30 and December 31
of each year (each a “Dividend Payment Date”), or if any such day is not a
Business Day, on the first Business Day subsequent
thereto.   Each period from and including a Dividend Payment Date
to but excluding the following Dividend Payment Date is herein referred to as a
“Dividend Period.”

      


      (b)           Each
Dividend will be payable to Holders of record as they appear in the records of
the Corporation at the close of business on the fifteenth day of the month
preceding the month in which the relevant Dividend Payment Date occurs or, if
such date is not a Business Day, the first Business Day following such
date.

      


      (c)           Dividends
on the Series A Preferred Stock are non-cumulative. If the Board of Directors
does not declare a Dividend on the Series A Preferred Stock in respect of any
Dividend Period, the Holders will have no right to receive any Dividend for such
Dividend Period, and the Corporation will have no obligation to pay a Dividend
for such Dividend Period, whether or not Dividends are declared and paid for any
future Dividend Period with respect to the Series A Preferred Stock or the
Common Stock or any other class or series of the Corporation’s capital
stock.

      


      (d)           If
full Dividends payable pursuant to Subparagraph 4(a) on all outstanding shares
of the Series A Preferred Stock for any Dividend Period have not been declared
and paid, the Corporation shall not declare or pay dividends with respect to, or
redeem, purchase or acquire any of, its Junior Securities during the next
succeeding Dividend Period, other than (i) redemptions, purchases or other
acquisitions of Junior Securities in connection with any benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants or in connection with a dividend reinvestment
or shareholder stock purchase plan or (ii) any declaration of a dividend in
connection with any shareholders’ rights plan, including with respect to any
successor shareholders’ rights plan, or the issuance of rights, stock or other
property under any shareholders’ rights plan, including with respect to any
successor shareholders’ rights plan, or the redemption or repurchase of rights
pursuant thereto.  If Dividends payable pursuant to Subparagraph 4(a)
for any Dividend Period are not paid in full on the shares of the Series A
Preferred Stock and there are issued and outstanding shares of Parity Securities
with the same relevant payment date (or a payment date falling within the same
Dividend Period if the payment dates are not the same), then all dividends
declared on shares of the Series A Preferred Stock and such Parity Securities on
such date(s) shall be declared pro rata so that the respective amounts of such
dividends shall bear the same ratio to each other as full quarterly Dividends
per share payable on the shares of the Series A Preferred Stock pursuant to
Subparagraph 4(a) and all such Parity Securities otherwise payable on such
relevant payment date(s) (subject to their having been declared by the Board of
Directors out of legally available funds and including, in the case of any such
Parity Securities that bear cumulative dividends, all accrued but unpaid
dividends) bear to each other.


      
        
           


        

        
          2

          
            

          

        

        
           


        

      

       

      5.           Liquidation or
Dissolution.

      


      (a)           If
the Corporation voluntarily or involuntarily liquidates, dissolves or winds up,
the Holders at such time shall be entitled to receive, on a per share basis, the
Liquidation Preference, plus an amount equal to any declared but unpaid
dividends thereon to and including the date of such liquidation, dissolution or
winding up out of assets legally available for distribution to the Corporation’s
shareholders, before any distribution of assets is made to the holders of the
Common Stock or any other Junior Securities (such amount is herein referred to
as the “Liquidation Value”).

      


      (b)           To
the extent the payments required by Section 5(a) have been made in full to the
Holders and to holders of any Parity Securities, the remaining assets and funds
of the Corporation shall be distributed among the holders of the Junior
Securities, according to their respective rights and preferences and in each
case according to their respective shares.

      


      (c)           If
the assets of the Corporation available for distribution to shareholders upon
any liquidation, dissolution or winding-up of the affairs of the Corporation,
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 as required by Section 5(a) 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 Corporation in proportion to the
full respective liquidating distributions to which they would otherwise be
respectively entitled.


      
        
           


        

        
          3

          
            

          

        

        
           


        

      

       

      (d)           Neither
a change of control nor any purchase or redemption of stock of the Corporation
of any class shall be deemed to be a liquidation, dissolution or winding up of
the Corporation within the meaning of the provisions of this Section
5.

      


      6.           Maturity.  The
Series A Preferred stock shall be perpetual.

      


      7.           Repurchase
Provision.  Subject to regulatory approval and to such approval
as may be expressly required pursuant to the terms of any preferred stock issued
by the Corporation to and held by the U.S. Treasury, the Corporation shall have
the right to repurchase all or any part of the Series A Preferred Stock at any
time at a purchase price per share equal to the Liquidation
Value.  Any shares of Series A Preferred Stock that are
repurchased by the Corporation shall revert to authorized but unissued shares of
preferred stock (provided that any such cancelled shares of Series A
Preferred Stock may be reissued only as shares of any series of preferred stock
other than Series A Preferred Stock).

      


      8.           No Implied
Limitations.  Nothing herein shall limit, by inference or
otherwise, the discretionary right of the Board of Directors to divide any or
all of the shares of preferred stock of the Corporation into series and, within
the limitations set forth in the Georgia Business Corporate Code, to fix and
determine the relative rights and preferences of the shares of any series so
established, to the full extent provided in the Articles of Incorporation of the
Corporation.

      


      9.           General
Provisions.  In addition to the above provisions with respect
to the Series A Preferred Stock, such Series A Preferred Stock shall be subject
to, and entitled to the benefits of, the provisions set forth in the
Corporation’s Articles of Incorporation with respect to preferred stock
generally.

      


      10.           Definitions.  As
used herein with respect to the Series A Preferred Stock, the following terms
have the following meanings:

      


      (a)           The
term “Business Day” means any day other than a Saturday, Sunday or any other day
on which banks in Atlanta, Georgia are generally required or authorized by law
to be closed.

      


      (b)           The
term “Common Stock” has the meaning set forth in Section 2.

      


      (c)           The
term “Effective Date” means the effective date on which shares of the Series A
Preferred Stock are first designated in Articles of Amendment filed with the
Georgia Secretary of State pursuant to the provisions of O.C.G.A. §
14-2-602.

      


      (d)           The
term “Holder” means the Person in whose name the shares of the Series A
Preferred Stock are registered, which may be treated by the Corporation as the
absolute owner of the shares of Series A Preferred Stock for the purpose of
making payment and settling the related conversions and for all other
purposes.


      
        
           


        

        
          4

          
            

          

        

        
           


        

      

      


      (e)           The
term “Liquidation Preference” means, as to the Series A Preferred Stock, $1,000
per share.

      


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

      


      11.           Notices.  All
notices required or permitted to be given by the Corporation with respect to the
Series A Preferred Stock shall be in writing, and if delivered by first class
United States mail, postage prepaid, to the Holders at their last addresses as
they shall appear upon the books of the Corporation, shall be conclusively
presumed to have been duly given, whether or not the Holder actually receives
such notice.”

      


      


      1.

      


      The
foregoing amendment was duly adopted by the Corporation’s Board of Directors on
December 20, 2008 and shall be effective upon filing with the Georgia Secretary
of State.  Shareholder approval was not required pursuant to the
provisions of Section 14-2-602 of the Georgia Business Corporation
Code.

      


      


      [Signature
appears on next page]


      
        
           


        

        
          5

          
            

          

        

        
           


        

      

       

      IN WITNESS WHEREOF, the
Corporation has caused these Articles of Amendment to be signed by its duly
authorized officer this 29th day of December, 2008.

      


      
        
          	 
      	
                  HABERSHAM
      BANCORP

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Edward D. Ariail

                
	 
      	 
      	
                  Edward
      D. Ariail

                
	 
      	 
      	
                  Vice
      President and Corporate

                
	 
      	 
      	
                  Secretary

                


        

      

       

       

      6