UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PINNACLE FINANCIAL PARTNERS, INC.
(Exact name of registrant as specified in its charter)
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Tennessee
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62-1812853
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(State of incorporation or organization)
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(I.R.S. Employer Identification No.)
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The Commerce Center
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211 Commerce Street
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37201
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Suite 300
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Nashville, TN
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(Address of principal executive offices)
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(Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which
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to be so registered
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each class is to be registered
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Common Stock, $1.00 Par Value
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NASDAQ Global Select Market
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If this form relates to the registration of a class of securities pursuant to section 12(b) of the
Exchange Act and is effective pursuant to General Instruction A.(c), check the following box.
x
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to General Instruction A.(d), check the following box.
o
Securities
Act registration statement file number to which this form relates:
000-31225
Securities to be registered pursuant to Section 12(g) of the Act: None
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EXPLANATORY NOTE
This
Registration Statement on Form 8-A/A is being filed by Pinnacle Financial Partners, Inc.,
a Tennessee corporation, to restate and amend in its entirety the description of Pinnacle’s common
stock previously set forth in a Registration Statement on Form 8-A filed by Pinnacle with the
Securities and Exchange Commission on August 3, 2000.
Except as specifically noted herein, “Pinnacle,” “Pinnacle Financial,” “we,” “our,” “us” and
similar words in this registration statement refer to Pinnacle Financial Partners, Inc. and
“Pinnacle National” refer to Pinnacle National Bank, a wholly-owned subsidiary of Pinnacle
Financial.
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Item 1.
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Description of Registrant’s Securities to be Registered.
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DESCRIPTION OF COMMON STOCK
General
The authorized capital stock of Pinnacle Financial Partners, Inc. consists of 90 million
shares of common stock, par value $1.00 per share, and 10 million shares of preferred stock, no par
value. As of December 31, 2008, 23,762,124 shares of Pinnacle Financial common stock were
outstanding, and 95,000 shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A were
outstanding. The remaining shares of preferred stock, other than the shares currently issued as
Series A preferred stock, may be issued in one or more series with those terms and at those times
and for any consideration as the Pinnacle Financial board of directors determines. As of December
31, 2008, 2,754,254 shares of Pinnacle Financial common stock were reserved for issuance upon the
exercise of outstanding stock options under various employee stock option plans, 345,000 shares
were reserved for issuance upon exercise of warrants issued to Pinnacle Financial’s organizers and
534,910 shares were reserved for issuance upon exercise of the warrant issued to the U.S.
Department of the Treasury in connection with its acquisition of the Series A preferred stock.
The following summary of the terms of the capital stock of Pinnacle Financial is not intended
to be complete and is subject in all respects to the applicable provisions of the Tennessee
Business Corporation Act, or TBCA, and is qualified by reference to the amended and restated
charter and bylaws of Pinnacle Financial.
Common Stock
The outstanding shares of Pinnacle Financial common stock are fully paid and nonassessable.
Holders of Pinnacle Financial common stock are entitled to one vote for each share held of record
on all matters submitted to a vote of the shareholders. Holders of Pinnacle Financial common stock
do not have pre-emptive rights and are not entitled to cumulative voting rights with respect to the
election of directors. The Pinnacle Financial common stock is neither redeemable nor convertible
into other securities, and there are no sinking fund provisions with respect to the common stock.
Subject to the preferences applicable to any shares of Pinnacle Financial preferred stock
outstanding at the time, including the Series A preferred stock, holders of Pinnacle Financial
common stock are entitled to dividends when and as declared by the Pinnacle Financial board of
directors from legally available funds and are entitled, in the event of liquidation, to share
ratably in all assets remaining after payment of liabilities.
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Preferred Stock
Pinnacle Financial is authorized to issue up to 10 million shares of preferred stock. As of
the date hereof, the 95,000 shares of Series A preferred stock are the only shares of preferred
stock outstanding. The outstanding shares of Series A preferred stock have no maturity date and
are fully paid and non-assessable. The holders of the shares of Series A preferred stock are
entitled to certain rights and preferences including with respect to the receipt of dividends and
upon liquidation, dissolution, and winding up of Pinnacle Financial and these holders also have the
right to elect directors to Pinnacle Financial’s board of directors if Pinnacle Financial fails to
pay dividends on the shares for a total of six quarters. The board of directors of Pinnacle
Financial may, without further action by the shareholders of Pinnacle Financial, issue one or more
series of Pinnacle Financial preferred stock and fix the rights and preferences of those shares,
including the dividend rights, dividend rates, conversion rights, exchange rights, voting rights,
terms of redemption, redemption price or prices, liquidation preferences, the number of shares
constituting any series and the designation of such series.
Election of Directors by Shareholders
Pinnacle Financial’s amended and restated charter and bylaws provide that the Pinnacle
Financial board of directors is to be divided into three classes as nearly equal in number as
possible. Directors are elected by classes to three-year terms, so that approximately one-third of
the directors of Pinnacle Financial are elected at each annual meeting of the shareholders. In
addition, Pinnacle Financial’s bylaws provide that the power to increase or decrease the number of
directors and to fill vacancies is vested in the Pinnacle Financial board of directors. The overall
effect of these provisions may be to prevent a person or entity from seeking to acquire control of
Pinnacle Financial through an increase in the number of directors on the Pinnacle Financial board
of directors and the election of designated nominees to fill newly created vacancies.
In the event that Pinnacle Financial fails to pay dividends on the Series A preferred stock
for an aggregate of six quarterly dividend periods or more (whether or not consecutive), the
authorized number of directors then constituting Pinnacle Financial’s board of directors will be
increased by two. Holders of the Series A preferred stock, together with the holders of any
outstanding parity stock with like voting rights, referred to as voting parity stock, voting as a
single class, will be entitled to elect the two additional members of Pinnacle Financial’s board of
directors, referred to as the preferred stock directors, at the next annual meeting (or at a
special meeting called for the purpose of electing the preferred stock directors prior to the next
annual meeting) and at each subsequent annual meeting until all accrued and unpaid dividends for
all past dividend periods have been paid in full.
Dividends on Common Stock
Holders of Pinnacle Financial’s common stock are entitled to receive dividends when, as and if
declared by Pinnacle Financial’s board of directors out of funds legally available for dividends.
Pinnacle Financial has never declared or paid any dividends on its common stock. In order to pay
any dividends, Pinnacle Financial will need to receive dividends from Pinnacle National or
have other sources of funds. As a national bank, Pinnacle National can only pay dividends to
Pinnacle Financial if it has retained earnings for the current fiscal year and the preceding two
fiscal years, and if it has a positive retained earnings account. At September 30, 2008, Pinnacle
National’s retained earnings available for dividends were $66.9 million. In addition, its
ability to pay dividends or otherwise transfer funds to Pinnacle Financial is subject to various
regulatory restrictions.
Pinnacle Financial’s ability to pay dividends to its shareholders in the future will depend on
its earnings and financial condition, liquidity and capital requirements, the general economic and
regulatory
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climate, its ability to service any equity or debt obligations senior to its common stock and other
factors deemed relevant by Pinnacle Financial’s board of directors. Pinnacle Financial currently
intends to retain any future earnings to fund the development and growth of our business.
Therefore, Pinnacle Financial does not anticipate paying any cash dividends on its common stock in
the foreseeable future.
Corporate Transactions
Pinnacle Financial’s amended and restated charter, with exceptions, requires that any merger
or similar transaction involving Pinnacle Financial or any sale or other disposition of all or
substantially all of Pinnacle Financial’s assets will require the affirmative vote of a majority of
its directors then in office and the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Pinnacle Financial’s common stock. However, if Pinnacle Financial’s board of
directors has approved the particular transaction by the affirmative vote of two-thirds of the
entire board, then the applicable provisions of Tennessee law would govern and shareholder approval
of the transaction would require only the affirmative vote of the holders of a majority of the
outstanding shares of common stock entitled to vote on the transaction. Any amendment of this
provision adopted by less than two-thirds of the entire board of directors would require the
affirmative vote of the holders of at least two-thirds of the outstanding shares of common stock;
otherwise, the amendment would only require the affirmative vote of at least a majority of the
outstanding shares of common stock.
Pinnacle Financial’s charter describes the factors that its board of directors must consider
in evaluating whether an acquisition proposal made by another party is in Pinnacle Financial’s
shareholders’ best interests. The term “acquisition proposal” refers to any offer of another party
to:
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make a tender offer or exchange offer for Pinnacle Financial’s common stock or any other equity
security of Pinnacle Financial;
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merge or combine Pinnacle Financial with another corporation; or
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purchase or otherwise acquire all or substantially all of the properties and assets owned by
Pinnacle Financial.
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The board of directors, in evaluating an acquisition proposal, is required to consider all
relevant factors, including:
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the expected social and economic effects of the transaction on Pinnacle Financial’s employees,
clients and other constituents, such as its suppliers of goods and services;
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the payment being offered by the other corporation in relation to (1) Pinnacle Financial’s
current value at the time of the proposal as determined in a freely negotiated transaction and (2)
the board of directors’ estimate of Pinnacle Financial’s future value as an independent company at
the time of the proposal; and
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the expected social and economic effects on the communities within which Pinnacle Financial
operates.
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Pinnacle Financial has included this provision in its amended and restated charter because
serving its community is one of the reasons for organizing Pinnacle National. As a result, the
board of directors believes its obligation in evaluating an acquisition proposal extends beyond
evaluating merely the payment being offered in relation to the market or book value of the common
stock at the time of the proposal.
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While the value of what is being offered to shareholders in exchange for their stock is the
main factor when weighing the benefits of an acquisition proposal, the board believes it is
appropriate also to consider all other relevant factors. For example, the board will evaluate what
is being offered in relation to the current value of Pinnacle Financial at the time of the proposal
as determined in a freely negotiated transaction and in relation to the board’s estimate of the
future value of Pinnacle Financial as an independent concern at the time of the proposal. A
takeover bid often places the target corporation virtually in the position of making a forced sale,
sometimes when the market price of its stock may be depressed. The board believes that frequently
the payment offered in such a situation, even though it may exceed the value at which shares are
then trading, is less than that which could be obtained in a freely negotiated transaction. In a
freely negotiated transaction, management would have the opportunity to seek a suitable partner at
a time of its choosing and to negotiate for the most favorable price and terms that would reflect
not only Pinnacle Financial’s current value, but also its future value.
One effect of the provision requiring Pinnacle Financial’s board of directors to take into
account specific factors when considering an acquisition proposal may be to discourage a tender
offer in advance. Often an offeror consults the board of a target corporation before or after
beginning a tender offer in an attempt to prevent a contest from developing. In Pinnacle
Financial’s board’s opinion, this provision will strengthen its position in dealing with any
potential offeror that might attempt to acquire the company through a hostile tender offer. Another
effect of this provision may be to dissuade shareholders who might be displeased with the board’s
response to an acquisition proposal from engaging Pinnacle Financial in costly litigation.
The applicable charter provisions would not make an acquisition proposal regarded by the board
as being in Pinnacle Financial’s best interests more difficult to accomplish. It would, however,
permit the board to determine that an acquisition proposal was not in Pinnacle Financial’s best
interests, and thus to oppose it, on the basis of the various factors that the board deems
relevant. In some cases, opposition by the board might have the effect of maintaining incumbent
management.
Any amendment of this provision adopted by less than two-thirds of the entire board of
directors would require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of common stock; otherwise, the amendment would only require the affirmative
vote of at least a majority of the outstanding shares of common stock.
Pinnacle Financial’s amended and restated charter provides that all extraordinary corporate
transactions must be approved by two-thirds of the directors and a majority of the shares entitled
to vote or a majority of the directors and two-thirds of the shares entitled to vote.
In addition to the provisions described above with respect to board and shareholder approval
required for certain corporate transactions, for so long as any shares of Series A preferred stock
are outstanding, in addition to any other vote or consent of shareholders required by law or by
Pinnacle Financial’s amended and restated charter, the vote or consent of the holders of at least
66 2/3% of the shares of Series A preferred stock at the time outstanding, voting separately as a
single class, is also necessary for effecting or validating any consummation of a binding share
exchange or reclassification involving the Series A preferred stock or of a merger or consolidation
of Pinnacle Financial with another entity, unless the shares of Series A preferred stock remain
outstanding following any such transaction or, if Pinnacle Financial is not the surviving entity,
are converted into or exchanged for preference securities of the surviving entity and such
remaining outstanding shares of Series A preferred stock or preference securities have rights,
references, privileges and voting powers that are not materially less favorable than the rights,
preferences, privileges or voting powers of the Series A preferred stock, taken as a whole.
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Anti-Takeover Statutes
The Tennessee Control Share Acquisition Act generally provides that, except as stated below,
“control shares” will not have any voting rights. Control shares are shares acquired by a person
under certain circumstances which, when added to other shares owned, would give such person
effective control over one-fifth or more, or a majority of all voting power (to the extent such
acquired shares cause such a person to exceed one-fifth or one-third of all voting power) in the
election of a Tennessee corporation’s directors. However, voting rights will be restored to control
shares by resolution approved by the affirmative vote of the holders of a majority of the
corporation’s voting stock, other than shares held by the owner of the control shares. If voting
rights are granted to control shares which give the holder a majority of all voting power in the
election of the corporation’s directors, then the corporation’s other shareholders may require the
corporation to redeem their shares at fair value.
The Tennessee Control Share Acquisition Act is not applicable to Pinnacle Financial because
its amended and restated charter does not contain a specific provision “opting in” to the act.
The Tennessee Investor Protection Act, or TIPA, provides that unless a Tennessee corporation’s
board of directors has recommended a takeover offer to shareholders, no offeror beneficially owning
5% or more of any class of equity securities of the offeree company, any of which was purchased
within the preceding year, may make a takeover offer for any class of equity security of the
offeree company if after completion the offeror would be a beneficial owner of more than 10% of any
class of outstanding equity securities of the company unless the offeror, before making such
purchase: (1) makes a public announcement of his or her intention with respect to changing or
influencing the management or control of the offeree company; (2) makes a full, fair and effective
disclosure of such intention to the person from whom he or she intends to acquire such securities;
and (3) files with the Tennessee Commissioner of Commerce and Insurance (the “Commissioner”) and
the offeree company a statement signifying such intentions and containing such additional
information as may be prescribed by the Commissioner.
The offeror must provide that any equity securities of an offeree company deposited or
tendered pursuant to a takeover offer may be withdrawn by an offeree at any time within seven days
from the date the offer has become effective following filing with the Commissioner and the offeree
company and public announcement of the terms or after 60 days from the date the offer has become
effective. If the takeover offer is for less than all the outstanding equity securities of any
class, such an offer must also provide for acceptance of securities pro rata if the number of
securities tendered is greater than the number the offeror has offered to accept and pay for. If
such an offeror varies the terms of the takeover offer before its expiration date by increasing the
consideration offered to offerees, the offeror must pay the increased consideration for all equity
securities accepted, whether accepted before or after the variation in the terms of the offer.
The TIPA does not apply to Pinnacle Financial, as it does not apply to bank holding companies
subject to regulation by a federal agency and does not apply to any offer involving a vote by
holders of equity securities of the offeree company.
The Tennessee Business Combination Act generally prohibits a “business combination” by
Pinnacle Financial or a subsidiary with an “interested shareholder” within five years after the
shareholder becomes an interested shareholder. Pinnacle Financial or a subsidiary can, however,
enter into a business combination within that period if, before the interested shareholder became
such, Pinnacle Financial’s board of directors approved the business combination or the transaction
in which the interested shareholder became an interested shareholder. After that five-year
moratorium, the business combination with the interested shareholder can be consummated only if it
satisfies certain fair price criteria or is approved by two-thirds (2/3) of the other shareholders.
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For purposes of the Tennessee Business Combination Act, a “business combination” includes
mergers, share exchanges, sales and leases of assets, issuances of securities, and similar
transactions. An “interested shareholder” is generally any person or entity that beneficially owns
10% or more of the voting power of any outstanding class or series of Pinnacle Financial stock.
Pinnacle Financial’s charter does not have special requirements for transactions with
interested parties; however, all business combinations, as defined above, must be approved by two
thirds (2/3) of the directors and a majority of the shares entitled to vote or a majority of the
directors and two thirds (2/3) of the shares entitled to vote.
The Tennessee Greenmail Act applies to a Tennessee corporation that has a class of voting
stock registered or traded on a national securities exchange or registered with the SEC pursuant to
Section 12(g) of the Exchange Act. Under the Tennessee Greenmail Act, Pinnacle Financial may not
purchase any of its shares at a price above the market value of such shares from any person who
holds more than 3% of the class of securities to be purchased if such person has held such shares
for less than two years, unless the purchase has been approved by the affirmative vote of a
majority of the outstanding shares of each class of voting stock issued by Pinnacle Financial or
Pinnacle Financial makes an offer, or at least equal value per share, to all shareholders of such
class.
Indemnification
The TBCA provides that a corporation may indemnify any of its directors and officers against
liability incurred in connection with a proceeding if: (a) such person acted in good faith; (b) in
the case of conduct in an official capacity with the corporation, he reasonably believed such
conduct was in the corporation’s best interests; (c) in all other cases, he reasonably believed
that his conduct was at least not opposed to the best interests of the corporation; and (d) in
connection with any criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides
that no indemnification may be made if the director or officer was adjudged to be liable to the
corporation. The TBCA also provides that in connection with any proceeding charging improper
personal benefit to an officer or director, no indemnification may be made if such officer or
director is adjudged liable on the basis that such personal benefit was improperly received. In
cases where the director or officer is wholly successful, on the merits or otherwise, in the
defense of any proceeding instigated because of his or her status as a director or officer of a
corporation, the TBCA mandates that the corporation indemnify the director or officer against
reasonable expenses incurred in the proceeding. The TBCA provides that a court of competent
jurisdiction, unless the corporation’s charter provides otherwise, upon application, may order that
an officer or director be indemnified for reasonable expenses if, in consideration of all relevant
circumstances, the court determines that such individual is fairly and reasonably entitled to
indemnification, notwithstanding the fact that (a) such officer or director was adjudged liable to
the corporation in a proceeding by or in the right of the corporation; (b) such officer or director
was adjudged liable on the basis that personal benefit was improperly received by him; or (c) such
officer or director breached his duty of care to the corporation.
Pinnacle Financial’s charter provides that it will indemnify its directors and officers to the
maximum extent permitted by the TBCA. Pinnacle Financial’s bylaws provide that its directors and
officers shall be indemnified against expenses that they actually and reasonably incur if they are
successful on the merits of a claim or proceeding. In addition, the bylaws provide that Pinnacle
Financial will advance to its directors and officers reasonable expenses of any claim or proceeding
so long as the director or officer furnishes Pinnacle Financial with (1) a written affirmation of
his or her good faith
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belief that he or she has met the applicable standard of conduct and (2) a written statement that
he or she will repay any advances if it is ultimately determined that he or she is not entitled to
indemnification.
When a case or dispute is settled or otherwise not ultimately determined on its merits, the
indemnification provisions provide that Pinnacle Financial will indemnify its directors and
officers when they meet the applicable standard of conduct. The applicable standard of conduct is
met if the directors or officer acted in a manner he or she in good faith believed to be in or not
opposed to Pinnacle Financial’s best interests and, in the case of a criminal action or proceeding,
if the insider had no reasonable cause to believe his or her conduct was unlawful. Pinnacle
Financial’s board of directors, shareholders or independent legal counsel determines whether the
director or officer has met the applicable standard of conduct in each specific case.
Pinnacle Financial’s amended and restated charter and bylaws also provide that the
indemnification rights contained therein do not exclude other indemnification rights to which a
director or officer may be entitled under any bylaw, resolution or agreement, either specifically
or in general terms approved by the affirmative vote of the holders of a majority of the shares
entitled to vote. Pinnacle Financial can also provide for greater indemnification than is provided
for in the bylaws if Pinnacle Financial chooses to do so, subject to approval by its shareholders
and the limitations provided in its amended and restated charter as discussed in the subsequent
paragraph.
Pinnacle Financial’s amended and restated charter eliminates, with exceptions, the potential
personal liability of a director for monetary damages to Pinnacle Financial and its shareholders
for breach of a duty as a director. There is, however, no elimination of liability for:
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a breach of the director’s duty of loyalty to Pinnacle Financial or its shareholders;
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an act or omission not in good faith or which involves intentional misconduct or a knowing
violation of law; or
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any payment of a dividend or approval of a stock repurchase that is illegal under the TBCA.
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Pinnacle Financial’s amended and restated charter does not eliminate or limit Pinnacle
Financial’s right or the right of its shareholders to seek injunctive or other equitable relief not
involving monetary damages.
The indemnification provisions of the bylaws specifically provide that Pinnacle Financial may
purchase and maintain insurance on behalf of any director or officer against any liability asserted
against and incurred by him or her in his or her capacity as a director, officer, employee or agent
whether or not Pinnacle Financial would have had the power to indemnify against such liability.
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3.1
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Amended and Restated Charter of Pinnacle Financial Partners, Inc., as amended (filed herewith)
(Restated for SEC filing purposes only)
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3.2
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Bylaws
of Pinnacle Financial Partners, Inc. (1) (Restated for SEC filing
purposes only)
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4.1
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Specimen of Common Stock Certificate (2)
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4.2
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See Exhibits 3.1 and 3.2 for provisions of the Charter and Bylaws defining rights of holders of
Common Stock
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(1)
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Registrant hereby incorporates by reference to Registrant’s Current Report on Form 8-K
filed on September 21, 2007
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(2)
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Registrant hereby incorporates by reference to Amendment No.
1 to the Registrant’s Registration Statement on
Form SB-2 (File No. 333-38018) filed with the Securities and Exchange
Commission on July 12, 2000.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
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PINNACLE FINANCIAL PARTNERS, INC.
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Date: January 12, 2009
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By:
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/s/ Harold
R. Carpenter
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Name:
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Harold R. Carpenter
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Title:
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Chief Financial Officer
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EXHIBIT INDEX
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3.1
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Amended and Restated Charter of Pinnacle Financial Partners, Inc., as amended (filed
herewith) (Restated for SEC filing purposes only)
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3.2
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Bylaws of Pinnacle Financial Partners, Inc. (1) (Restated for SEC filing
purposes only)
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4.1
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Specimen of Common Stock Certificate (2)
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4.2
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See Exhibits 3.1 and 3.2 for provisions of the Charter and Bylaws defining rights of holders of
Common Stock
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(1)
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Registrant hereby incorporates by reference to Registrant’s Current Report on Form 8-K
filed on September 21, 2007
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(2)
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Registrant hereby incorporates by reference to Amendment No.
1 to the Registrant’s Registration Statement on
Form SB-2 (File No. 333-38018) filed with the Securities and Exchange
Commission on July 12, 2000.
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EXHIBIT 3.1
AMENDED AND RESTATED CHARTER
OF
PINNACLE FINANCIAL PARTNERS, INC.
Under the authority of Section 48-20-101, et. al., of the Tennessee
Business Corporation Act, as amended, the undersigned corporation
adopts the following Amended and Restated Charter:
Article 1. Name
The name of the Corporation is: “PINNACLE FINANCIAL PARTNERS, INC.”
Article 2. Capital Stock
(a) The total number of shares of capital stock which the Corporation
is authorized to issue is fifty million (50,000,000) shares, divided into forty
million (40,000,000) shares of common stock, $1.00 par value (the “Common
Stock”), and ten million (10,000,000) shares of preferred stock no par value
(the “Preferred Stock”).
(b) The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law and the provisions of this Article, to provide for
the issuance of the shares of Preferred Stock in series, and by filing an
article of amendment pursuant to the applicable law of the State of Tennessee to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences, and relative rights of
the shares of each such series and the qualifications, or restrictions thereof.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
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(i)
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The number of shares constituting that series and the
distinctive designation of that series;
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(ii)
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The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so,
from which date or dates, and the relative rights of
priority, if any, of payments of dividends on shares
of that series;
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(iii)
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Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such voting rights;
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(iv)
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Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such
conversion, including provisions for adjustment of
the conversion rate in such events as the Board of
Directors shall determine;
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(v)
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Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of
such redemption, including the date or dates upon or
after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount
may vary under different conditions and at different
redemption rates;
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(vi)
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Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund;
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(vii)
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The rights of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, and the relative
rights of priority, if any, of payment of shares of
that series; and
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(viii)
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Any other relative rights, preferences and
limitations of that series.
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(c) Fixed Rate Cumulative Perpetual Preferred Stock, Series A
A.
Designation and Number of Shares
. There is hereby created out of the
authorized and unissued shares of preferred stock of the Corporation a series of
preferred stock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock,
Series A” (the “Designated Preferred Stock”). The authorized number of shares of
Designated Preferred Stock shall be 95,000.
B.
Standard Provisions
. The Standard Provisions contained in Annex A
attached hereto are incorporated herein by reference in their entirety and shall be
deemed to be a part of these Articles of Amendment to the same extent as if such
provisions had been set forth in full herein.
C.
Definitions
. The following terms are used in these Articles of
Amendment (including the Standard Provisions in Annex A hereto) as defined below:
(a) “Common Stock” means the common stock, par value $1.00 per share,
of the Corporation.
(b) “Dividend Payment Date” means February 15, May 15, August 15 and
November 15 of each year.
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(c) “Junior Stock” means the Common Stock, and any other class or
series of stock of the Corporation the terms of which expressly provide that
it ranks junior to Designated Preferred Stock as to dividend rights and/or
as to rights on liquidation, dissolution or winding up of the Corporation.
(d) “Liquidation Amount” means $1,000 per share of Designated Preferred
Stock.
(e) “Minimum Amount” means $23,750,000.
(f) “Parity Stock” means any class or series of stock of the
Corporation (other than Designated Preferred Stock) the terms of which do
not expressly provide that such class or series will rank senior or junior
to Designated Preferred Stock as to dividend rights and/or as to rights on
liquidation, dissolution or winding up of the Corporation (in each case
without regard to whether dividends accrue cumulatively or
non-cumulatively).
(g) “Signing Date” means the Original Issue Date.
D.
Certain Voting Matters
. Holders of shares of Designated Preferred
Stock will be entitled to one vote for each such share on any matter on which
holders of Designated Preferred Stock are entitled to vote, including any action by
written consent.
Article 3. Registered Office; Registered Agent
The name and address of the initial Registered Agent and the Registered
Office of the Corporation are:
Robert A. McCabe, Jr.
4418 Herbert Place
Davidson County
Nashville, Tennessee 37215
Article 4. Incorporator
The name and address of the incorporator are:
M. Terry Turner
812 Jones Parkway
Brentwood, Tennessee 37027
Article 5. Principal Office
The mailing address of the initial principal office of the corporation
is:
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3401 West End Avenue, Suite 306
Nashville, Tennessee 37203
The mailing address of the Corporation’s principal office is:
P.O. Box 50338
Nashville, Tennessee 37215-0338
Article 6. Purpose
The Corporation is for profit.
Article 7. Board of Directors
(a) The Board of Directors shall be divided into three (3) classes,
Class I, Class II and Class III, which shall be as nearly equal in number as
possible. Each director in Class I shall be elected to an initial term of one
(1) year, each director in Class II shall be elected to an initial term of two
(2) years, each director in Class III shall be elected to an initial term of
three (3) years, and each director shall serve until the election and
qualification of his or her successor or until his or her earlier resignation,
death or removal from office. Upon the expiration of the initial terms of office
for each Class of directors, the directors of each Class shall be elected for
terms of three (3) years, to serve until the election and qualification of their
successors or until their earlier resignation, death or removal from office.
(b) Unless two-thirds (2/3) of the directors then in office shall
approve the proposed change, this Article 7 may be amended or rescinded only by
the affirmative vote of the holders of at least two-thirds (2/3) of the issued
and outstanding shares of the Corporation entitled to vote in an election of
directors, at any regular or special meeting of the shareholders, and notice of
the proposed change must be contained in the notice of the meeting.
Article 8. Bylaws; Number of Directors
(a) Except as provided in paragraph (b) of this Article 8, the Board of
Directors shall have the right to adopt, amend or repeal the bylaws of the
Corporation by the affirmative vote of a majority of all directors then in
office, and the shareholders shall have such right by the affirmative vote of a
majority of the issued and outstanding shares of the Corporation entitled to
vote in an election of directors.
(b) Notwithstanding paragraph (a) of this Article 8, any amendment of
the bylaws of the Corporation establishing or changing the number of
directors within the range provided for in
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the bylaws, or establishing or changing the range itself, shall require the
affirmative vote of two-thirds (2/3) of all directors then in office or the
affirmative vote of the holders of two-thirds (2/3) of the issued and
outstanding shares of the Corporation entitled to vote in an election of
directors, at any regular or special meeting of the shareholders, and notice of
the proposed change must be contained in the notice of the meeting.
Article 9. Removal of Directors
(a) The entire Board of Directors or any individual director may be
removed without cause, at any shareholders’ meeting with respect to which notice
of such purpose has been given, only by the affirmative vote of the holders of
at least two-thirds (2/3) of the issued and outstanding shares of the
Corporation entitled to vote in an election of directors.
(b) The entire Board of Directors or any individual director may be
removed with cause upon the affirmative vote of two-thirds of all directors then
in office or, at any shareholders’ meeting with respect to which notice of such
purpose has been given, by the affirmative vote of the holders of at least a
majority of the issued and outstanding shares of the Corporation entitled to
vote in an election of directors.
(c) For purposes of this Article 9, a director of the Corporation may
be removed for cause if (i) the director has been convicted of a felony; (ii)
any bank regulatory authority having jurisdiction over the Corporation requests
or demands the removal; or (iii) at least two-thirds (2/3) of the directors of
the Corporation then in office, excluding the director to be removed, determine
that the director’s conduct has been inimical to the best interests of the
Corporation.
(d) Unless two-thirds (2/3) of the directors then in office shall
approve the proposed change, this Article 9 may be amended or rescinded only by
the affirmative vote of the holders of at least two-thirds (2/3) of the issued
and outstanding shares of the Corporation entitled to vote in an election of
directors, at any regular or special meeting of the shareholders, and notice of
the proposed change must be contained in the notice of the meeting.
Article 10. Liability of Directors
(a) A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages, for breach of
any duty as a director, except for liability for:
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(i)
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a breach of the director’s duty of loyalty to the
Corporation or its shareholders;
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(ii)
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acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
or
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(iii)
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the types of liability set forth in Section 48-18-304
of the Tennessee Business Corporation Act dealing
with unlawful distributions of corporate assets to
shareholders; or
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(b) Any repeal or modification of this Article by the shareholders of
the Corporation shall be prospective only and shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
(c) Unless two-thirds (2/3) of the directors then in office shall
approve the proposed change, this Article 10 may be amended or rescinded only by
the affirmative vote of the holders of at least two-thirds (2/3) of the issued
and outstanding shares of the Corporation entitled to vote thereon, at any
regular or special meeting of the shareholders, and notice of the proposed
change must be contained in the notice of the meeting.
Article 11. Shareholder Action by Written Consent
Any action required or permitted by the provisions of the Tennessee
Business Corporation Act (the “Act”) to be taken at a shareholders’ meeting may
be taken without a meeting in accordance with Section 48-17-104 of the Act if
the action is taken by persons who would be entitled to vote at a meeting shares
having voting power to cast not less than the minimum number of votes that would
be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted. Notice of such action
without a meeting by less than unanimous written consent shall be given within
ten (10) days of the taking of such action to those shareholders of record on
the date when the written consent is first executed and whose shares were not
represented on the written consent.
Article 12. Indemnification
The Corporation shall, to the fullest extent permitted by the
provisions of the Tennessee Business Corporation Act, as the same may be amended
and supplemented, indemnify its directors and officers, and may indemnify all
other persons whom it shall have power to indemnify under the Act from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by the Act. Any indemnification effected under this provision
shall not be deemed exclusive of rights to which those indemnified may be
entitled under any Bylaw, vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
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Article 13. Approval of Business Transactions
(a) In any case in which the Tennessee Business Corporation Act or
other applicable law requires shareholder approval of any merger or share
exchange of the Corporation with or into any other corporation, or any sale,
lease, exchange or other disposition of substantially all of the assets of the
Corporation to any other corporation, person or other entity, shall require
either:
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(i)
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the affirmative vote of two-thirds (2/3) of the
directors of the Corporation then in office and the
affirmative vote of a majority of the issued and
outstanding shares of the corporation entitled to
vote; or
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(ii)
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the affirmative vote of a majority of the directors
of the Corporation then in office and the affirmative
vote of the holders of at least two-thirds (2/3) of
the issued and outstanding shares of the Corporation
entitled to vote.
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(b) The Board of Directors shall have the power to determine for the
purposes of this Article 13, on the basis of information known to the
Corporation, whether any sale, lease or exchange or other disposition of part of
the assets of the Corporation involves substantially all of the assets of the
Corporation.
(c) Unless two-thirds (2/3) of the directors then in office shall
approve the proposed change, this Article 13 may be amended or rescinded only by
the affirmative vote of the holders of at least two-thirds (2/3) of the issued
and outstanding shares of the Corporation entitled to vote thereon, at any
regular or special meeting of the shareholders, and notice of the proposed
change must be contained in the notice of the meeting.
Article 14. Factors Considered in Business Transactions
(a) The Board of Directors, when evaluating any offer of another party
(i) to make a tender offer or exchange offer for any equity security of the
Corporation, (ii) to merge or consolidate any other corporation with the
Corporation, or (iii) to purchase or otherwise acquire all or substantially all
of the assets of the Corporation, shall, in determining what is in the best
interests of the Corporation and its shareholders, give due consideration to all
relevant factors, including without limitation: (A) the short-term and long-term
social and economic effects on the employees, customers, shareholders and other
constituents of the Corporation and its subsidiaries, and on the communities
within which the Corporation and its subsidiaries operate (it being understood
that any subsidiary bank of the Corporation is charged with providing support to
and being involved in the communities it serves); and (B) the consideration
being offered by the other party in relation to the then-current value of the
Corporation in a freely negotiated transaction and in relation to the Board of
Directors’ then-estimate of the future value of the Corporation as an
independent entity.
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(b) Unless two-thirds (2/3) of the directors then in office shall
approve the proposed change, this Article 14 may be amended or rescinded only by
the affirmative vote of the holders of at least two-thirds (2/3) of the issued
and outstanding shares of the Corporation entitled to vote thereon, at any
regular or special meeting of the shareholders, and notice of the proposed
change must be contained in the notice of the meeting.
Article 15. Savings Clause
Should any provision of this Charter, or any clause hereof, be held to
be invalid, illegal or unenforceable, in whole or in part, the remaining
provisions and clauses of this Charter shall remain valid and fully enforceable.
Article 16. Effective Date
The Amended and Restated Charter is to be effective upon filing with
the Secretary of State of Tennessee.
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ANNEX A
STANDARD PROVISIONS
Section 1.
General Matters
. Each share of Designated Preferred Stock shall be
identical in all respects to every other share of Designated Preferred Stock. The Designated
Preferred Stock shall be perpetual, subject to the provisions of Section 5 of these Standard
Provisions that form a part of the Certificate of Designations. The Designated Preferred Stock
shall rank equally with Parity Stock and shall rank senior to Junior Stock with respect to the
payment of dividends and the distribution of assets in the event of any dissolution, liquidation or
winding up of the Corporation.
Section 2.
Standard Definitions
. As used herein with respect to Designated Preferred
Stock:
(a) “
Applicable Dividend Rate
” means (i) during the period from the Original Issue
Date to, but excluding, the first day of the first Dividend Period commencing on or after the fifth
anniversary of the Original Issue Date, 5% per annum and (ii) from and after the first day of the
first Dividend Period commencing on or after the fifth anniversary of the Original Issue Date, 9%
per annum.
(b) “
Appropriate Federal Banking Agency
” means the “appropriate Federal banking
agency” with respect to the Corporation as defined in Section 3(q) of the Federal Deposit Insurance
Act (12 U.S.C. Section 1813(q)), or any successor provision.
(c) “
Articles of Amendment
” means the Articles of Amendment filed with the Secretary
of State of the State of Tennessee by Pinnacle Financial Partners, Inc. creating the Designated
Preferred Stock.
(d) “
Business Combination
” means a merger, consolidation, statutory share exchange or
similar transaction that requires the approval of the Corporation’s stockholders.
(e)
“Business Day
” means any day except Saturday, Sunday and any day on which banking
institutions in the State of New York generally are authorized or required by law or other
governmental actions to close.
(f) “
Bylaws
” means the bylaws of the Corporation, as they may be amended from time to
time.
(g)
“Certificate of Designations
” means the Articles of Amendment, of which these
Standard Provisions form a part, as may be amended from time to time.
(h) “
Charter
” means the Corporation’s certificate or articles of incorporation,
articles of association, or similar organizational document.
(i) “
Dividend Period
” has the meaning set forth in Section 3(a).
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(j) “
Dividend Record Date
” has the meaning set forth in Section 3(a).
(k) “
Liquidation Preference
” has the meaning set forth in Section 4(a).
(l) “
Original Issue Date
” means the date on which shares of Designated Preferred Stock
are first issued.
(m) “
Preferred Director
” has the meaning set forth in Section 7(b).
(n) “
Preferred Stock
” means any and all series of preferred stock of the Corporation,
including the Designated Preferred Stock.
(o) “
Qualified Equity Offering
” means the sale and issuance for cash by the
Corporation to persons other than the Corporation or any of its subsidiaries after the Original
Issue Date of shares of perpetual Preferred Stock, Common Stock or any combination of such stock,
that, in each case, qualify as and may be included in Tier 1 capital of the Corporation at the time
of issuance under the applicable risk-based capital guidelines of the Corporation’s Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant to agreements or
arrangements entered into, or pursuant to financing plans which were publicly announced, on or
prior to October 13, 2008).
(p) “
Share Dilution Amount
” has the meaning set forth in Section 3(b).
(q) “
Standard Provisions
” mean these Standard Provisions that form a part of the
Certificate of Designations relating to the Designated Preferred Stock.
(r) “
Successor Preferred Stock
” has the meaning set forth in Section 5(a).
(s) “
Voting Parity Stock
” means, with regard to any matter as to which the holders of
Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and 7(b) of these
Standard Provisions that form a part of the Certificate of Designations, any and all series of
Parity Stock upon which like voting rights have been conferred and are exercisable with respect to
such matter.
Section 3.
Dividends
.
(a)
Rate
. Holders of Designated Preferred Stock shall be entitled to receive, on each
share of Designated Preferred Stock if, as and when declared by the Board of Directors or any duly
authorized committee of the Board of Directors, but only out of assets legally available therefor,
cumulative cash dividends with respect to each Dividend Period (as defined below) at a rate per
annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount per share of Designated
Preferred Stock and (ii) the amount of accrued and unpaid dividends for any prior Dividend Period
on such share of Designated Preferred Stock, if any. Such dividends shall begin to accrue and be
cumulative from the Original Issue Date, shall compound on each subsequent Dividend Payment Date
(
i.e.
, no dividends shall accrue on other dividends unless and until the first Dividend Payment
Date for such other dividends has passed without such other dividends having been paid on such
date) and shall be payable quarterly in arrears on each Dividend Payment Date, commencing with the
first such Dividend Payment Date to occur at least 20
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calendar days after the Original Issue Date. In the event that any Dividend Payment Date would
otherwise fall on a day that is not a Business Day, the dividend payment due on that date will be
postponed to the next day that is a Business Day and no additional dividends will accrue as a
result of that postponement. The period from and including any Dividend Payment Date to, but
excluding, the next Dividend Payment Date is a “
Dividend Period
”, provided that the initial
Dividend Period shall be the period from and including the Original Issue Date to, but excluding,
the next Dividend Payment Date.
Dividends that are payable on Designated Preferred Stock in respect of any Dividend Period
shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of
dividends payable on Designated Preferred Stock on any date prior to the end of a Dividend Period,
and for the initial Dividend Period, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months, and actual days elapsed over a 30-day month.
Dividends that are payable on Designated Preferred Stock on any Dividend Payment Date will be
payable to holders of record of Designated Preferred Stock as they appear on the stock register of
the Corporation on the applicable record date, which shall be the 15th calendar day immediately
preceding such Dividend Payment Date or such other record date fixed by the Board of Directors or
any duly authorized committee of the Board of Directors that is not more than 60 nor less than 10
days prior to such Dividend Payment Date (each, a “
Dividend Record Date
”). Any such day
that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a
Business Day.
Holders of Designated Preferred Stock shall not be entitled to any dividends, whether payable
in cash, securities or other property, other than dividends (if any) declared and payable on
Designated Preferred Stock as specified in this Section 3 (subject to the other provisions of the
Certificate of Designations).
(b)
Priority of Dividends
. So long as any share of Designated Preferred Stock remains
outstanding, no dividend or distribution shall be declared or paid on the Common Stock or any other
shares of Junior Stock (other than dividends payable solely in shares of Common Stock) or Parity
Stock, subject to the immediately following paragraph in the case of Parity Stock, and no Common
Stock, Junior Stock or Parity Stock shall be, directly or indirectly, purchased, redeemed or
otherwise acquired for consideration by the Corporation or any of its subsidiaries unless all
accrued and unpaid dividends for all past Dividend Periods, including the latest completed Dividend
Period (including, if applicable as provided in Section 3(a) above, dividends on such amount), on
all outstanding shares of Designated Preferred Stock have been or are contemporaneously declared
and paid in full (or have been declared and a sum sufficient for the payment thereof has been set
aside for the benefit of the holders of shares of Designated Preferred Stock on the applicable
record date). The foregoing limitation shall not apply to (i) redemptions, purchases or other
acquisitions of shares of Common Stock or other Junior Stock in connection with the administration
of any employee benefit plan in the ordinary course of business (including purchases to offset the
Share Dilution Amount (as defined below) pursuant to a publicly announced repurchase plan) and
consistent with past practice, provided that any purchases to offset the Share Dilution Amount
shall in no event exceed the Share Dilution Amount; (ii) purchases or other acquisitions by a
broker-dealer subsidiary of the Corporation
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solely for the purpose of market-making, stabilization or customer facilitation transactions
in Junior Stock or Parity Stock in the ordinary course of its business; (iii) purchases by a
broker-dealer subsidiary of the Corporation of capital stock of the Corporation for resale pursuant
to an offering by the Corporation of such capital stock underwritten by such broker-dealer
subsidiary; (iv) any dividends or distributions of rights or Junior Stock in connection with a
stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’
rights plan; (v) the acquisition by the Corporation or any of its subsidiaries of record ownership
in Junior Stock or Parity Stock for the beneficial ownership of any other persons (other than the
Corporation or any of its subsidiaries), including as trustees or custodians; and (vi) the exchange
or conversion of Junior Stock for or into other Junior Stock or of Parity Stock for or into other
Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, in each case,
solely to the extent required pursuant to binding contractual agreements entered into prior to the
Signing Date or any subsequent agreement for the accelerated exercise, settlement or exchange
thereof for Common Stock. “
Share Dilution Amount
” means the increase in the number of
diluted shares outstanding (determined in accordance with generally accepted accounting principles
in the United States, and as measured from the date of the Corporation’s consolidated financial
statements most recently filed with the Securities and Exchange Commission prior to the Original
issue Date) resulting from the grant, vesting or exercise of equity-based compensation to employees
and equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification
or similar transaction.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside
for the benefit of the holders thereof on the applicable record date) on any Dividend Payment Date
(or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment
Dates, on a dividend payment date falling within a Dividend Period related to such Dividend Payment
Date) in full upon Designated Preferred Stock and any shares of Parity Stock, all dividends
declared on Designated Preferred Stock and all such Parity Stock and payable on such Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to
such Dividend Payment Date) shall be declared
pro rata
so that the respective amounts of such
dividends declared shall bear the same ratio to each other as all accrued and unpaid dividends per
share on the shares of Designated Preferred Stock (including, if applicable as provided in Section
3(a) above, dividends on such amount) and all Parity Stock payable on such Dividend Payment Date
(or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment
Dates, on a dividend payment date falling within the Dividend Period related to such Dividend
Payment Date) (subject to their having been declared by the Board of Directors or a duly authorized
committee of the Board of Directors out of legally available funds and including, in the case of
Parity Stock that bears cumulative dividends, all accrued but unpaid dividends) bear to each other.
If the Board of Directors or a duly authorized committee of the Board of Directors determines not
to pay any dividend or a full dividend on a Dividend Payment Date, the Corporation will provide
written notice to the holders of Designated Preferred Stock prior to such Dividend Payment Date.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, securities or
other property) as may be determined by the Board of Directors or any duly authorized committee of
the Board of Directors may be declared and paid on any securities, including Common Stock and other
Junior Stock, from time to time out of any funds legally available for
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such payment, and holders of Designated Preferred Stock shall not be entitled to participate
in any such dividends.
Section 4.
Liquidation Rights
.
(a)
Voluntary or Involuntary Liquidation
. In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of
Designated Preferred Stock shall be entitled to receive for each share of Designated Preferred
Stock, out of the assets of the Corporation or proceeds thereof (whether capital or surplus)
available for distribution to stockholders of the Corporation, subject to the rights of any
creditors of the Corporation, before any distribution of such assets or proceeds is made to or set
aside for the holders of Common Stock and any other stock of the Corporation ranking junior to
Designated Preferred Stock as to such distribution, payment in full in an amount equal to the sum
of (i) the Liquidation Amount per share and (ii) the amount of any accrued and unpaid dividends
(including, if applicable as provided in Section 3(a) above, dividends on such amount), whether or
not declared, to the date of payment (such amounts collectively, the “
Liquidation
Preference
”).
(b)
Partial Payment
. If in any distribution described in Section 4(a) above the assets
of the Corporation or proceeds thereof are not sufficient to pay in full the amounts payable with
respect to all outstanding shares of Designated Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally with Designated
Preferred Stock as to such distribution, holders of Designated Preferred Stock and the holders of
such other stock shall share ratably in any such distribution in proportion to the full respective
distributions to which they are entitled.
(c)
Residual Distributions
. If the Liquidation Preference has been paid in full to all
holders of Designated Preferred Stock and the corresponding amounts payable with respect of any
other stock of the Corporation ranking equally with Designated Preferred Stock as to such
distribution has been paid in full, the holders of other stock of the Corporation shall be entitled
to receive all remaining assets of the Corporation (or proceeds thereof) according to their
respective rights and preferences.
(d)
Merger, Consolidation and Sale of Assets Not Liquidation
. For purposes of this
Section 4, the merger or consolidation of the Corporation with any other corporation or other
entity, including a merger or consolidation in which the holders of Designated Preferred Stock
receive cash, securities or other property for their shares, or the sale, lease or exchange (for
cash, securities or other property) of all or substantially all of the assets of the Corporation,
shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 5.
Redemption
.
(a)
Optional Redemption
. Except as provided below, the Designated Preferred Stock may
not be redeemed prior to the first Dividend Payment Date falling on or after the third anniversary
of the Original Issue Date. On or after the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, at its option, subject to the
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approval of the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any
time and from time to time, out of funds legally available therefor, the shares of Designated
Preferred Stock at the time outstanding, upon notice given as provided in Section 5(c) below, at a
redemption price equal to the sum of (i) the Liquidation Amount per share and (ii) except as
otherwise provided below, any accrued and unpaid dividends (including, if applicable as provided in
Section 3(a) above, dividends on such amount) (regardless of whether any dividends are actually
declared) to, but excluding, the date fixed for redemption.
Notwithstanding the foregoing, prior to the first Dividend Payment Date falling on or after
the third anniversary of the Original Issue Date, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any time
and from time to time, the shares of Designated Preferred Stock at the time outstanding, upon
notice given as provided in Section 5(c) below, at a redemption price equal to the sum of (i) the
Liquidation Amount per share and (ii) except as otherwise provided below, any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above, dividends on such amount)
(regardless of whether any dividends are actually declared) to, but excluding, the date fixed for
redemption; provided that (x) the Corporation (or any successor by Business Combination) has
received aggregate gross proceeds of not less than the Minimum Amount (plus the “Minimum Amount” as
defined in the relevant certificate of designations for each other outstanding series of preferred
stock of such successor that was originally issued to the United States Department of the Treasury
(the “
Successor Preferred Stock
”) in connection with the Troubled Asset Relief Program
Capital Purchase Program) from one or more Qualified Equity Offerings (including Qualified Equity
Offerings of such successor), and (y) the aggregate redemption price of the Designated Preferred
Stock (and any Successor Preferred Stock) redeemed pursuant to this paragraph may not exceed the
aggregate net cash proceeds received by the Corporation (or any successor by Business Combination)
from such Qualified Equity Offerings (including Qualified Equity Offerings of such successor).
The redemption price for any shares of Designated Preferred Stock shall be payable on the
redemption date to the holder of such shares against surrender of the certificate(s) evidencing
such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a
redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not
be paid to the holder entitled to receive the redemption price on the redemption date, but rather
shall be paid to the holder of record of the redeemed shares on such Dividend Record Date relating
to the Dividend Payment Date as provided in Section 3 above.
(b)
No Sinking Fund
. The Designated Preferred Stock will not be subject to any
mandatory redemption, sinking fund or other similar provisions. Holders of Designated Preferred
Stock will have no right to require redemption or repurchase of any shares of Designated Preferred
Stock.
(c)
Notice of Redemption
. Notice of every redemption of shares of Designated Preferred
Stock shall be given by first class mail, postage prepaid, addressed to the holders of record of
the shares to be redeemed at their respective last addresses appearing on the books of the
Corporation. Such mailing shall be at least 30 days and not more than 60 days before the date fixed
for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice, but failure
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duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to
any holder of shares of Designated Preferred Stock designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of Designated Preferred Stock.
Notwithstanding the foregoing, if shares of Designated Preferred Stock are issued in book-entry
form through The Depository Trust Corporation or any other similar facility, notice of redemption
may be given to the holders of Designated Preferred Stock at such time and in any manner permitted
by such facility. Each notice of redemption given to a holder shall state: (1) the redemption date;
(2) the number of shares of Designated Preferred Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; and (4) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price.
(d)
Partial Redemption
. In case of any redemption of part of the shares of Designated
Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either
pro
rata
or in such other manner as the Board of Directors or a duly authorized committee thereof may
determine to be fair and equitable. Subject to the provisions hereof, the Board of Directors or a
duly authorized committee thereof shall have full power and authority to prescribe the terms and
conditions upon which shares of Designated Preferred Stock shall be redeemed from time to time. If
fewer than all the shares represented by any certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without charge to the holder thereof.
(e)
Effectiveness of Redemption
. If notice of redemption has been duly given and if on
or before the redemption date specified in the notice all funds necessary for the redemption have
been deposited by the Corporation, in trust for the
pro rata
benefit of the holders of the shares
called for redemption, with a bank or trust company doing business in the Borough of Manhattan, The
City of New York, and having a capital and surplus of at least $500 million and selected by the
Board of Directors, so as to be and continue to be available solely therefor, then, notwithstanding
that any certificate for any share so called for redemption has not been surrendered for
cancellation, on and after the redemption date dividends shall cease to accrue on all shares so
called for redemption, all shares so called for redemption shall no longer be deemed outstanding
and all rights with respect to such shares shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to receive the amount payable on such
redemption from such bank or trust company, without interest. Any funds unclaimed at the end of
three years from the redemption date shall, to the extent permitted by law, be released to the
Corporation, after which time the holders of the shares so called for redemption shall look only to
the Corporation for payment of the redemption price of such shares.
(f)
Status of Redeemed Shares
. Shares of Designated Preferred Stock that are redeemed,
repurchased or otherwise acquired by the Corporation shall revert to authorized but unissued shares
of Preferred Stock (provided that any such cancelled shares of Designated Preferred Stock may be
reissued only as shares of any series of Preferred Stock other than Designated Preferred Stock).
Section 6.
Conversion
. Holders of Designated Preferred Stock shares shall have no
right to exchange or convert such shares into any other securities.
Section 7.
Voting Rights
.
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(a)
General
. The holders of Designated Preferred Stock shall not have any voting
rights except as set forth below or as otherwise from time to time required by law.
(b)
Preferred Stock Directors
. Whenever, at any time or times, dividends payable on
the shares of Designated Preferred Stock have not been paid for an aggregate of six quarterly
Dividend Periods or more, whether or not consecutive, the authorized number of directors of the
Corporation shall automatically be increased by two and the holders of the Designated Preferred
Stock shall have the right, with holders of shares of any one or more other classes or series of
Voting Parity Stock outstanding at the time, voting together as a class, to elect two directors
(hereinafter the “
Preferred Directors
“ and each a “
Preferred Director
”) to fill
such newly created directorships at the Corporation’s next annual meeting of stockholders (or at a
special meeting called for that purpose prior to such next annual meeting) and at each subsequent
annual meeting of stockholders until all accrued and unpaid dividends for all past Dividend
Periods, including the latest completed Dividend Period (including, if applicable as provided in
Section 3(a) above, dividends on such amount), on all outstanding shares of Designated Preferred
Stock have been declared and paid in full at which time such right shall terminate with respect to
the Designated Preferred Stock, except as herein or by law expressly provided, subject to revesting
in the event of each and every subsequent default of the character above mentioned; provided that
it shall be a qualification for election for any Preferred Director that the election of such
Preferred Director shall not cause the Corporation to violate any corporate governance requirements
of any securities exchange or other trading facility on which securities of the Corporation may
then be listed or traded that listed or traded companies must have a majority of independent
directors. Upon any termination of the right of the holders of shares of Designated Preferred Stock
and Voting Parity Stock as a class to vote for directors as provided above, the Preferred Directors
shall cease to be qualified as directors, the term of office of all Preferred Directors then in
office shall terminate immediately and the authorized number of directors shall be reduced by the
number of Preferred Directors elected pursuant hereto. Any Preferred Director may be removed at any
time, with or without cause, and any vacancy created thereby may be filled, only by the affirmative
vote of the holders a majority of the shares of Designated Preferred Stock at the time outstanding
voting separately as a class together with the holders of shares of Voting Parity Stock, to the
extent the voting rights of such holders described above are then exercisable. If the office of any
Preferred Director becomes vacant for any reason other than removal from office as aforesaid, the
remaining Preferred Director may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(c)
Class Voting Rights as to Particular Matters
. So long as any shares of Designated
Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required
by law or by the Charter, the vote or consent of the holders of at least 66 2/3 % of the shares of
Designated Preferred Stock at the time outstanding, voting as a separate class, given in person or
by proxy, either in writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
(i)
Authorization of Senior Stock
. Any amendment or alteration of the
Certificate of Designations for the Designated Preferred Stock or the Charter to authorize
or create or increase the authorized amount of, or any issuance of, any shares of, or any
securities convertible into or exchangeable or exercisable for shares of, any class or
series
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of capital stock of the Corporation ranking senior to Designated Preferred Stock with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii)
Amendment of Designated Preferred Stock
. Any amendment, alteration or
repeal of any provision of the Certificate of Designations for the Designated Preferred
Stock or the Charter (including, unless no vote on such merger or consolidation is required
by Section 7(c)(iii) below, any amendment, alteration or repeal by means of a merger,
consolidation or otherwise) so as to adversely affect the rights, preferences, privileges or
voting powers of the Designated Preferred Stock; or
(iii)
Share Exchanges, Reclassifications, Mergers and Consolidations
. Any
consummation of a binding share exchange or reclassification involving the Designated
Preferred Stock, or of a merger or consolidation of the Corporation with another corporation
or other entity, unless in each case (x) the shares of Designated Preferred Stock remain
outstanding or, in the case of any such merger or consolidation with respect to which the
Corporation is not the surviving or resulting entity, are converted into or exchanged for
preference securities of the surviving or resulting entity or its ultimate parent, and (y)
such shares remaining outstanding or such preference securities, as the case may be, have
such rights, preferences, privileges and voting powers, and limitations and restrictions
thereof, taken as a whole, as are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and limitations and restrictions
thereof, of Designated Preferred Stock immediately prior to such consummation, taken as a
whole;
provided, however
, that for all purposes of this Section 7(c), any increase in the amount of the
authorized Preferred Stock, including any increase in the authorized amount of Designated Preferred
Stock necessary to satisfy preemptive or similar rights granted by the Corporation to other persons
prior to the Signing Date, or the creation and issuance, or an increase in the authorized or issued
amount, whether pursuant to preemptive or similar rights or otherwise, of any other series of
Preferred Stock, or any securities convertible into or exchangeable or exercisable for any other
series of Preferred Stock, ranking equally with and/or junior to Designated Preferred Stock with
respect to the payment of dividends (whether such dividends are cumulative or non-cumulative) and
the distribution of assets upon liquidation, dissolution or winding up of the Corporation will not
be deemed to adversely affect the rights, preferences, privileges or voting powers, and shall not
require the affirmative vote or consent of, the holders of outstanding shares of the Designated
Preferred Stock.
(d)
Changes after Provision for Redemption
. No vote or consent of the holders of
Designated Preferred Stock shall be required pursuant to Section 7(c) above if, at or prior to the
time when any such vote or consent would otherwise be required pursuant to such Section, all
outstanding shares of the Designated Preferred Stock shall have been redeemed, or shall have been
called for redemption upon proper notice and sufficient funds shall have been deposited in trust
for such redemption, in each case pursuant to Section 5 above.
(e)
Procedures for Voting and Consents
. The rules and procedures for calling and
conducting any meeting of the holders of Designated Preferred Stock (including, without
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limitation, the fixing of a record date in connection therewith), the solicitation and use of
proxies at such a meeting, the obtaining of written consents and any other aspect or matter with
regard to such a meeting or such consents shall be governed by any rules of the Board of Directors
or any duly authorized committee of the Board of Directors, in its discretion, may adopt from time
to time, which rules and procedures shall conform to the requirements of the Charter, the Bylaws,
and applicable law and the rules of any national securities exchange or other trading facility on
which Designated Preferred Stock is listed or traded at the time.
Section 8.
Record Holders
. To the fullest extent permitted by applicable law, the
Corporation and the transfer agent for Designated Preferred Stock may deem and treat the record
holder of any share of Designated Preferred Stock as the true and lawful owner thereof for all
purposes, and neither the Corporation nor such transfer agent shall be affected by any notice to
the contrary.
Section 9.
Notices
. All notices or communications in respect of Designated Preferred
Stock shall be sufficiently given if given in writing and delivered in person or by first class
mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of
Designations, in the Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if
shares of Designated Preferred Stock are issued in book-entry form through The Depository Trust
Corporation or any similar facility, such notices may be given to the holders of Designated
Preferred Stock in any manner permitted by such facility.
Section 10.
No Preemptive Rights.
No share of Designated Preferred Stock shall have
any rights of preemption whatsoever as to any securities of the Corporation, or any warrants,
rights or options issued or granted with respect thereto, regardless of how such securities, or
such warrants, rights or options, may be designated, issued or granted.
Section 11.
Replacement Certificates
. The Corporation shall replace any mutilated
certificate at the holder’s expense upon surrender of that certificate to the Corporation. The
Corporation shall replace certificates that become destroyed, stolen or lost at the holder’s
expense upon delivery to the Corporation of reasonably satisfactory evidence that the certificate
has been destroyed, stolen or lost, together with any indemnity that may be reasonably required by
the Corporation.
Section 12.
Other Rights
. The shares of Designated Preferred Stock shall not have any
rights, preferences, privileges or voting powers or relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof other than as set forth
herein or in the Charter or as provided by applicable law.
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