SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF 
FARMERS CAPITAL BANK CORPORATION

        The undersigned hereby executes these Second Amended and Restated Articles of Incorporation of Farmers Capital Bank Corporation, and certifies that:

    First.        The name of the corporation is Farmers Capital Bank Corporation (the “Corporation”).

    Second.        There is only one amendment contained within these Second Amended and Restated Articles of Incorporation. The amendment so adopted is an amendment to delete ARTICLE V in its entirety pursuant to KRS 271B.10-020(3) (which ARTICLE V set forth the Corporation’s initial registered office and agent, which has previously been changed by filing with the Kentucky Secretary of State).

    Third.        The Corporation’s Second Amended and Restated Articles of Incorporation are as follows:

ARTICLE I

        The name of the corporation is Farmers Capital Bank Corporation.

ARTICLE II

        The existence of this corporation shall commence upon the issuance of the Certificate of Incorporation and its duration shall be perpetual unless sooner dissolved by action of the shareholders in accordance with the laws of the Commonwealth of Kentucky.

ARTICLE III

        The objects and purposes for which this corporation is organized and the powers which may be exercised by it are those enumerated in Sections 271A.020, 271A.026, and 271A.030 of the Kentucky Revised Statutes, and:

    (1)        To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, lease, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind and description including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts or obligations, domestic or foreign, and to pay therefor in whole or in part in cash or by exchanging therefor stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any such real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from such property, and to possess and exercise in respect thereof all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned.

    (2)        To act as a bank holding company.

    (3)        To aid either by loans or by guaranty of securities or in any other manner, any corporation, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities whereof are held by this corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this corporation or in which it at that time may be interested.

    (4)        To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any firms, persons, associations or corporations.

    (5)        To purchase, acquire, lease, own, and enjoy any and all such other property real and personal, as may be reasonably necessary for the carrying on of the business of the corporation.

    (6)        To acquire, as a going concern or otherwise, and pay for in cash, stock or bonds of this corporation or otherwise, the whole or any part of the business, good will, rights, assets and other property, and to undertake, assume or secure the whole or any part of the obligations or liabilities of any person, firm, trust, association or corporation.

    (7)        To issue bonds, debentures or obligations of this corporation from time to time, for any of the objects or purposes of the corporation, and to secure the same by mortgage, pledge, deed of trust, or otherwise.

    (8)        To purchase the corporate assets of any other corporation and engage in the same character of business.

    (9)        To apply for, acquire, enjoy, utilize and dispose of any patents, copyrights and trademarks and any licenses or other rights of interest thereunder or therein, whether or not in any way relating to any of the businesses in which the corporation may engage.

    (10)        To purchase, hold, sell and transfer shares of its own capital stock, subject to the limitations contained in Sections 271A.030 and 271A.330 of the Kentucky Revised Statutes. The corporation may purchase its own capital stock to the extent of unreserved and unrestricted earned surplus available therefor, and to the extent of unreserved and unrestricted capital surplus available therefor. Shares of its own capital stock owned by the corporation shall not be voted directly or indirectly, or counted as outstanding for the purpose of any stockholders’ quorum or vote.

    (11)        To transact any and all lawful business for which corporations may be incorporated under Chapter 271A of the Kentucky Revised Statutes.

        The foregoing clauses shall be construed both as objects and powers, and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this corporation.

ARTICLE IV

        (A) The aggregate shares of capital stock which the Corporation shall have the authority to issue is (i) Nine Million, Six Hundred and Eight Thousand (9,608,000) shares of common stock, all of which are to be of a par value of Twelve and One-Half Cents ($0.125) each, and (ii) One Million (1,000,000) shares of preferred stock, all of which are to be without par value. All shares of common stock shall have full and unlimited voting power, shall be entitled to one (1) vote per share and shall be without distinction as to powers, preferences, and rights. No holder of shares of the common stock of the Corporation shall have any preemptive or preferential right to subscribe for, purchase or receive any additional shares of capital stock of the Corporation or rights or options to purchase additional shares of capital stock of the Corporation or securities convertible into or carrying rights or options to purchase additional shares of the capital stock of the Corporation. All shares of preferred stock shall have the powers, preferences and rights as established by the Corporation’s Board of Directors pursuant to Article IV(B) hereof.

        (B) The Board of Directors is authorized, subject to limitations prescribed by law and the provisions of Article IV(A) above, to provide for the issuance of the shares of Corporation preferred stock in series and, by an appropriate filing pursuant to the applicable law of Kentucky, 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 rights of the shares of each such series and the qualifications, limitations or restrictions thereof.

        The authority of the Board with respect to each series shall include, but not be limited to, determination of the following:

        i. The number of shares constituting that series and the distinctive designation of that series;

 

ii.

The dividend rate on the shares of that series, whether dividends shall be cumulative (or partially cumulative), and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series;

 

 

iii.

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;

 

 

iv.

Whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Board of Directors shall determine;

 

 

v.

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 date 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 dates;

 

 

vi.

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;

 

 

vii.

Whether the shares of such series shall have a preference, as to the payment of dividends or otherwise, over the shares of Corporation common stock or the shares of any other series of preferred stock;

 

 

viii.

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

 

 

ix.

Any other relative rights, preferences and limitations of that series.



ARTICLE V

        [deleted pursuant to Kentucky Revised Statutes 271B.10-020(3)]

ARTICLE VI

        From and after the first annual meeting of the shareholders of the corporation, the affairs of the corporation shall be conducted and managed by a Board of Directors consisting of not less than nine (9) nor more than fifteen (15) members, as may be fixed by the By-Laws of the corporation from time to time.

        The number of Directors so fixed in the By-Laws may be changed only by receiving the affirmative vote of (i) the holders of at least 80% of all the then outstanding shares of common stock of the corporation or (ii) a majority of the Continuing Directors. (“Continuing Director” shall mean for the purposes of this ARTICLE a member of the Board of Directors at the time the vote is taken, who also meets one or more of the criteria set forth in ARTICLE X(2)(g)(2) of these Articles.) From and after the first annual meeting of the shareholders the Directors of the corporation shall be divided into three classes, each class to be as nearly equal in number as possible, said classes to be designated as Class I, Class II and Class III Directors. At the first annual meeting of the shareholders there shall be elected ten (10) Directors of the corporation, as follows: (a) three (3) members of Class I Directors who shall hold office until the second annual meeting of the shareholders at which second annual meeting the number of Class I Directors elected to office shall hold office for a term of three (3) years or until their respective successors are duly elected and qualified; (b) three (3) members of Class II Directors who shall hold office until the third annual meeting of the shareholders at which third annual meeting of the shareholders the number of Class II Directors elected to office shall hold office for a term of three (3) years or until their respective successors are duly elected and qualified, and (c) four (4) members of Class III directors who shall hold office for a term of three (3) years or until their respective successors are duly elected and qualified and following the expiration of their initial term of office the number of Class III Directors elected shall hold office for a term of three (3) years or until their respective successors are duly elected and qualified. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. A Director may be removed without cause, but only upon the affirmative vote of the holders of at least 80% of the outstanding shares of common stock of the corporation then entitled to vote at an election of Directors.

        The first Board of Directors who shall serve until the first annual meeting of the shareholders or until their successors shall be duly elected and qualified shall consist of ten (10) members who are: John P. Stewart, Route #7, Frankfort, Kentucky; Zack C. Saufley, One Farmers Bank Plaza, Frankfort, Kentucky; Warner U. Hines, Route #6, Frankfort, Kentucky; John J. Hopkins, 415 West Main Street, Frankfort, Kentucky; Charles T. Mitchell, 471 Breckinridge Avenue, Frankfort, Kentucky; John D. Sutterlin, 12 Whitebridge Lane, Frankfort, Kentucky; Joseph C. Yagel, Jr., 511 Leawood Drive, Frankfort, Kentucky; Bruce Dungan, One Farmers Bank Plaza, Frankfort, Kentucky; Charles O. Bush, 219 Walma, Frankfort, Kentucky; and Michael M. Sullivan, One Farmers Bank Plaza, Frankfort, Kentucky.

ARTICLE VII

        In furtherance, and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:

    (1)        To make and alter the bylaws of this corporation, to fix the amount to be reserved as working capital over and above its capital stock paid in, to authorize and cause to be executed mortgages, security interests, and liens upon the real and personal property of this corporation, as an entirety or in part.

    (2)        From time to time to determine whether and to what extent, and at what times and places, and under what conditions and regulations, the accounts and books of this corporation (other than the stock book), or any of them, shall be open to inspection of shareholders; and no shareholder shall have any right of inspecting any account, book or document of this corporation except as conferred by statute, unless authorized by a resolution of the shareholders or directors.

    (3)        To issue all or any portion of the capital stock of the corporation for lawful money of the United States, real or personal property, services, or any other right or thing of value having a value of not less than the par value of the stock to be issued, for the uses and purposes of the corporation, and when so issued the capital stock shall become and be fully paid and nonassessable; and the directors shall be sole judges of the value of any property, right or thing acquired in exchange for capital stock.

    (4)        If the bylaws so provide, to designate two or more of its number to constitute an executive committee which committee shall for the time being, as provided in said resolution or in the bylaws of this corporation, have and exercise any or all of the powers of the board of directors in the management of the business and affairs of this corporation, and have power to authorize the seal of this corporation to be affixed to all papers which may require it. The board of directors may also designate one or more other committees in the manner prescribed by the bylaws, each committee to have such name and to exercise such powers as may, from time to time, be prescribed by the bylaws or by resolution adopted by the board of directors.

ARTICLE VIII

        No contract or other transaction between the corporation and any other firm, partnership, association, corporation or other organization shall, in the absence of fraud, be affected or invalidated by the fact that any one or more of the directors of the corporation is or are interested in or is a member, director, shareholder or officer or are members, directors, shareholders or officers of such other firm, partnership, association, corporation or organization. Any director of the corporation may vote upon any contract or other transaction between the corporation and any subsidiary or controlled company without regard to the fact that he also is a director of such subsidiary or controlled company.

ARTICLE IX

        The name and address of the incorporator is:

Zack C. Saufley 
One Farmers Bank Plaza 
Frankfort, Kentucky 40601

ARTICLE X

        (1)        In addition to the requirements of any applicable statute, the affirmative vote of not less than 80% of the common stock of the corporation shall be required for the approval or authorization of any “Business Combination” (as hereinafter defined) between the corporation or any subsidiary of the corporation and any “Related Person” (as hereinafter defined), provided, however, that such 80% vote shall not be required and this ARTICLE shall not apply if:

        (a)        The Business Combination is solely a merger of a subsidiary of the corporation into the corporation under the provisions of Kentucky Revised Statute 271A.375; or

        (b)        The Business Combination is approved by a majority of the “Continuing Directors” of the corporation (as hereinafter defined).

        (2)        For the purposes of this ARTICLE:

        (a)        The term “Business Combination” shall mean (1) any merger or consolidation of the corporation or any subsidiary of the corporation with or into a Related Person, (2) any sale, lease, exchange, transfer or other disposition, including without limitation a mortgage or any other security device, of all or any “Substantial Part” (as hereinafter defined) of the assets either of the corporation (including without limitation any voting securities of a subsidiary) or of any subsidiary of the corporation to a Related Person, (3) any merger or consolidation of a Related Person with or into the corporation or any subsidiary of the corporation, (4) any sale, lease, exchange, transfer or other disposition of all or any Substantial Part of the assets of a Related Person to the corporation or any subsidiary of the corporation, (5) the issuance of any securities of the corporation or any subsidiary of the corporation to a Related Person, (6) any recapitalization that would have the effect of increasing the voting power of a Related Person, (7) the dissolution or liquidation of the corporation or any of its subsidiaries at a time when there is a Related Person to the corporation, or (8) any agreement, contract or other arrangement providing for any of the transactions described in this definition of Business Combination.

        (b)        The term “Related Person” shall mean a person (1) who owns, directly or indirectly, ten (10%) percent or more of the outstanding common stock of this corporation, or (2) who controls, is controlled by, or is under common control with, a person who owns, directly or indirectly, or who controls, ten (10%) percent or more of the outstanding common stock of this corporation.

        (c)        Without limitation, any shares of common stock of this corporation that any person has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, shall be deemed “owned” by that person.

        (d)        The term “control” shall mean the power, directly or indirectly, to direct the management or policies of a person or to vote, or direct the vote, of ten (10%) percent or more of any class of voting securities of a person.

        (e)        The term “person” shall mean an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of legal entity.

        (f)        The term “Substantial Part” shall mean more than 30% of the fair market value of the total assets of the corporation in question, as of the end of its most recent fiscal year ending prior to the time the determination is being made.

        (g)        The term “Continuing Director” shall mean a member of the Board of Directors of the corporation who (1) is a member of the Board of Directors of the corporation at the time the Director vote with respect to the Business Combination in question is taken, and (2) was (a) a member of the Board of Directors of the corporation on March 1, 1986, or (b) a member of the Board of Directors of the corporation immediately prior to the time that the Related Person involved in the Business Combination which is the subject of the Directors’ vote became a Related Person, or (c) designated as a Continuing Director by a majority of the then Continuing Directors within ninety (90) days after the date upon which he or she was first elected as a member of the Board of Directors of the corporation.

ARTICLE XI

    (1)        The provisions of ARTICLE IV, ARTICLE VI, ARTICLE X AND ARTICLE XI of these Articles of Incorporation may not be repealed or amended in any respect, unless (in addition to the requirements of any applicable statute) such action is approved by the affirmative vote of the holders of not less than 80% of the common stock of the corporation, provided, however, that such 80% vote shall not be required and this ARTICLE shall not apply if:

    (a)        At the time such repeal or amendment is approved by the Board of Directors of the corporation and at the time such repeal or amendment is voted upon by the shareholders of the corporation, there is no Related Person (as defined in ARTICLE X herein) of the corporation, or

 

    (b)        In the event there is a Related Person of the corporation at the time such repeal or amendment is approved by the Board of Directors of the corporation or is voted upon by the shareholders, the repeal or amendment is, or has been, approved by a majority of the “Prior Directors” (as herein defined).



    (2)        For the purpose of this ARTICLE XI, the term “Prior Director” shall mean a member of the Board of Directors of the corporation who (1) is a member of the Board of Directors of the corporation at the time the Directors’ vote with respect to such repeal or amendment is taken, and (2) was (a) a member of the Board of Directors of the corporation on March 1, 1986, or (b) a member of the Board of Directors of the corporation immediately prior to the time that the Related Person became a Related Person, or (c) designated as a Prior Director by a majority of the then Prior Directors within ninety (90) days after the date upon which he or she was first elected as a member of the Board of Directors of the corporation.

ARTICLE XII

        The liability of each and all of the directors of the corporation shall be and is hereby limited to the greatest extent permitted by law and no director of the corporation shall be personally liable to the corporation or its shareholders for monetary damages for a breach of his or her duties as director except for liability:

    (a)        for any transaction in which the director’s personal financial interest is in conflict with the financial interest of the corporation or its shareholders;

 

    (b)        for acts or omissions not in good faith or which involve intentional misconduct or are known to the director to be a violation of law;

 

    (c)        for voting for or assenting to any distributions made in violation of Section 271B.8-330 of the Kentucky Revised Statutes; or

 

    (d)        for any transaction from which the director derives an improper personal benefit.



        The exceptions set forth in paragraphs (a) through (d) of this Article shall be construed as narrowly as legally permissible. If the Kentucky Revised Statutes are amended after approval by the shareholders of this Article to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Kentucky Revised Statutes, as so amended. Any repeal or modification of this Article XII by the shareholders of the corporation shall be approved by the affirmative vote of the holders of not less than 80% of the common stock of the corporation as governed and limited by Article XI of the corporation’s Articles of Incorporation and any such repeal or modification shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

_________________

    Fourth.        Except for the designated amendment, these Second Amended and Restated Articles of Incorporation correctly set forth without change the corresponding provisions of the Corporation’s previously filed Amended and Restated Articles of Incorporation and all subsequent amendments thereto, and these Second Amended and Restated Articles of Incorporation, together with the designated amendment, supersede such Amended and Restated Articles of Incorporation and amendments thereto.

    Fifth.        These Second Amended and Restated Articles of Incorporated were adopted at a meeting of the Corporation’s board of directors held on July 24, 2006, at which meeting a majority of directors in office affirmatively voted to adopt these Second Amended and Restated Articles of Incorporation. Pursuant to Kentucky Revised Statutes 271B.10-020(3), the Corporation’s board of directors may adopt the designated amendment without shareholder action.

        IN WITNESS WHEREOF, the undersigned duly authorized officer of the Corporation hereby executes these Second Amended and Restated Articles of Incorporation this 24th day of July, 2006.

FARMERS CAPITAL BANK CORPORATION 

/s/ C Douglas Carpenter


 

 

C. Douglas Carpenter, Secretary

 

 



                            ARTICLES OF AMENDMENT

                                     TO

                          ARTICLES OF INCORPORATION

                                     OF

                      FARMERS CAPITAL BANK CORPORATION

 

         The name of the corporation is Farmers Capital Bank Corporation

(the "Corporation"), and the following amendment is hereby made to the

Corporation's Amended and Restated Articles of Incorporation, as amended

(the "Articles of Incorporation"):

 

         Article IV of the Corporation's Articles of Incorporation is

deleted in its entirety and there is inserted in lieu thereof the following:

 

                                 "ARTICLE IV

                                 -----------

 

         (A)      The aggregate shares of capital stock which the

                  Corporation shall have the authority to issue is (i) Nine

                  Million, Six Hundred and Eight Thousand (9,608,000) shares

                  of common stock, all of which are to be of a par value of

                  Twelve and One-Half Cents ($0.125) each, and (ii) One

                  Million (1,000,000) shares of preferred stock, all of

                  which are to be without par value. All shares of common

                  stock shall have full and unlimited voting power, shall be

                  entitled to one (1) vote per share and shall be without

                  distinction as to powers, preferences, and rights. No

                  holder of shares of the common stock of the Corporation

                  shall have any preemptive or preferential right to

                  subscribe for, purchase or receive any additional shares

                  of capital stock of the Corporation or rights or options

                  to purchase additional shares of capital stock of the

                  Corporation or securities convertible into or carrying

                  rights or options to purchase additional shares of the

                  capital stock of the Corporation. All shares of preferred

                  stock shall have the powers, preferences and rights as

                  established by the Corporation's Board of Directors

                  pursuant to Article IV(B) hereof.

 

         (B)      The Board of Directors is authorized, subject to

                  limitations prescribed by law and the provisions of

                  Article IV(A) above, to provide for the issuance of the

                  shares of Corporation preferred stock in series and, by an

                  appropriate filing pursuant to the applicable law of

                  Kentucky, 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 rights of the shares

                  of each such series and the qualifications, limitations or

                  restrictions thereof.

 

                  The authority of the Board with respect to each series

                  shall include, but not be limited to, determination of the

                  following:

 

 

 

<PAGE>

 

                  i.       The number of shares constituting that series and

                           the distinctive designation of that series;

 

                  ii.      The dividend rate on the shares of that series,

                           whether dividends shall be cumulative (or

                           partially cumulative), and, if so, from which

                           date or dates, and the relative rights of

                           priority, if any, of payment of dividends on

                           shares of that series;

 

                  iii.     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;

 

                  iv.      Whether that series shall have conversion

                           privileges, and, if so, the terms and conditions

                           of such conversion, including provision for

                           adjustment of the conversion rate in such events

                           as the Board of Directors shall determine;

 

                  v.       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 date

                           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 dates;

 

                  vi.      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;

 

                  vii.     Whether the shares of such series shall have a

                           preference, as to the payment of dividends or

                           otherwise, over the shares of Corporation common

                           stock or the shares of any other series of

                           preferred stock;

 

                  viii.    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

 

                  ix.      Any other relative rights, preferences and

                           limitations of that series."

 

 

                                     2

 

<PAGE>

 

 

         The Corporation had outstanding a total of 7,367,037 shares of

common stock, each with a par value of $0.125, which were entitled to cast

one vote each on the foregoing amendment. There are no other shareholder

voting groups. At the 2006 Annual Meeting of Shareholders on May 9, 2006,

there were 5,089,868 votes indisputably represented at the meeting. At the

meeting 3,044,971 shares voted in favor of the foregoing amendment and

781,523 shares voted against the amendment. Said 3,044,971 votes cast in

favor of the amendment were sufficient for approval of the amendment.

 

         Dated this the 10th day of May, 2006.

 

 

                                          /s/ C. Douglas Carpenter

                                       ----------------------------------------

                                       C. DOUGLAS CARPENTER

                                       SECRETARY

 

 

 

ARTICLES OF AMENDMENT

TO

SECOND AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

FARMERS CAPITAL BANK CORPORATION

DESIGNATING FIXED RATE CUMULATIVE PERPETUAL

PREFERRED STOCK, SERIES A

 

 

Pursuant to Kentucky Revised Statutes Sections 271B.6-020 and 271B.10-060, the undersigned Kentucky corporation, Farmers Capital Bank Corporation, executes these articles of amendment to its articles of incorporation:

 

A.          The name of the corporation is Farmers Capital Bank Corporation. (theCorporation”).

 

B.          The board of directors of the Corporation (the “Board of Directors”), in accordance with the Corporation’s articles of incorporation and applicable law, adopted the following resolution on December 18, 2008, creating a series of 30,000 shares of Preferred Stock of the Corporation designated as “Fixed Rate Cumulative Perpetual Preferred Stock, Series A”):

 

RESOLVED, that pursuant to the provisions of the articles of incorporation of the Corporation and applicable law, a series of Preferred Stock, no par value, of the Corporation be and hereby is created, and that the designation and number of shares of such series, and the voting and other powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions thereof, of the shares of such series, are as follows:

 

Part 1. Designation and Number of Shares. There is hereby created out of the authorized and unissued shares of preferred stock of the Corporation a series of preferred stock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock, Series A” (the “Designated Preferred Stock”). The authorized number of shares of Designated Preferred Stock shall be 30,000.

 

Part 2. 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.

 

Part. 3. 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 $0.125 per share, of the Corporation.

 

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

 

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

 

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

 

 

 


 

 

                (e) “Minimum Amount” means $7,500,000.

 

(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.

 

Part. 4. Certain Voting Matters.  Holders of shares of Designated Preferred Stock will be entitled to one vote for each such share on any matter on which holders of Designated Preferred Stock are entitled to vote, including any action by written consent.

 

C.           The Resolution was duly adopted by the Board of Directors of the Corporation at a meeting held on December 18, 2008.

 

D.           The Second Amended and Restated Articles of Incorporation of the Corporation are amended so that the designation and number of shares of each class and series acted upon in the Resolution, and the relative rights, preferences and limitations of each such class and series, are as stated in the Resolution.

 

IN WITNESS WHEREOF, the undersigned duly authorized officer has executed these articles of amendment the 6th day of January, 2009.

 

FARMERS CAPITAL BANK CORPORATION

 

By:         /s/ G. Anthony Busseni________________

G. Anthony Busseni

President and Chief Executive Officer

 

 

 

2


 

 

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 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)          “Business Combination” means a merger, consolidation, statutory share exchange or similar transaction that requires the approval of the Corporation’s stockholders.

 

(d)          “Business Day” means any day except Saturday, Sunday and any day on which banking institutions in the State of New York generally are authorized or required by law or other governmental actions to close.

 

(e)          “Bylaws” means the bylaws of the Corporation, as they may be amended from time to time.

 

(f)          “Certificate of Designations” means the Certificate of Designations or comparable instrument relating to the Designated Preferred Stock, of which these Standard Provisions form a part, as it may be amended from time to time.

 

(g)          “Charter” means the Corporation’s certificate or articles of incorporation, articles of association, or similar organizational document.

 

(h)          “Dividend Period” has the meaning set forth in Section 3(a).

 

(i)          “Dividend Record Date” has the meaning set forth in Section 3(a).

 

(j)          “Liquidation Preference” has the meaning set forth in Section 4(a).

 

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

 

 

A-1


 

 

are first issued.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

A-2


 

 

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 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

 

 

A-3


 

 

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 rate 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 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

 

 

A-4


 

 

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 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(cbelow, at a redemption price equal to the sum of (i) the

 

 

A-5


 

 

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 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

 

 

A-6


 

 

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 arc 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.

 

(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

 

 

A-7


 

 

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 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

 

 

A-8


 

 

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 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

 

 

A-9


 

 

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.

 

 

 

ARTICLES OF AMENDMENT TO SECOND AMENDED AND RESTATED

ARTICLES OF INCORPORATION OF FARMERS CAPITAL BANK CORPORATION

 

 

The name of the corporation is Farmers Capital Bank Corporation (the “Corporation”), and the following amendment is hereby made to the Corporation’s Second Amended and Restated Articles of Incorporation, as amended (the “Articles of Incorporation”):

 

Article IV(A) of the Corporation’s Second Amended and Restated Articles of Incorporation is deleted in its entirety and there is inserted in lieu thereof the following:

 

 

“(A)

The aggregate shares of capital stock which the Corporation shall have the authority to issue is (i) Fourteen Million Six Hundred Eight Thousand (14,608,000) shares of common stock, all of which are to be of a par value of Twelve and One-Half Cents ($0.125) each, and (ii) One Million (1,000,000) shares of preferred stock, all of which are to be without par value. All shares of common stock shall have full and unlimited voting power, shall be entitled to one (1) vote per share and shall be without distinction as to powers, preferences, and rights. No holder of shares of the common stock of the Corporation shall have any preemptive or preferential right to subscribe for, purchase or receive any additional shares of capital stock of the Corporation or rights or options to purchase additional shares of capital stock of the Corporation or securities convertible into or carrying rights or options to purchase additional shares of the capital stock of the Corporation. All shares of preferred stock shall have the powers, preferences and rights as established by the Corporation’s Board of Directors pursuant to Article IV(B) hereof.”

 

The Corporation had outstanding a total of 7,371,207 shares of common stock, each with a par value of $0.125, which were entitled to cast one vote each on the foregoing amendment. There are no other shareholder voting groups entitled to vote on the matter.  At the Special Meeting of Shareholders held on November 12, 2009, there were 5,968,069 votes indisputably represented at the meeting.  At the meeting 5,305,292 shares voted in favor of the foregoing amendment and 464,343 shares voted against the amendment.  Said 5,305,292 votes cast in favor of the amendment were sufficient for approval of the amendment.

 

Dated this the 16th day of November, 2009.

 

 

 

/s/ C. Douglas Carpenter

 

 

C. DOUGLAS CARPENTER

 

 

SECRETARY

 

[As Filed: 11-17-2009]