STATE OF SOUTH CAROLINA

 

                               SECRETARY OF STATE

 

                 AMENDED AND RESTATED ARTICLES OF INCORPORATION

                                       FOR

                         THE SOUTH FINANCIAL GROUP, INC.

 

 

         Pursuant to Section 33-10-107 of the 1976 South Carolina Code of Laws,

     as amended, the Corporation hereby submits the following information:

 

 

1.   The name of the Corporation is The South Financial Group, Inc.

 

2.   The name of the Corporation has been changed.  Its only former name was

     Carolina First Corporation.

 

3.   The original articles of incorporation were filed on May 21, 1986, and have

     subsequently been amended by various articles of amendment.

 

4.   The registered office of the Corporation is 102 S. Main Street, Greenville,

     South Carolina 29601, and the registered agent at such address is William

     P. Crawford, Jr.

 

5.   The Corporation is authorized to issue a single class of common shares,

     $1.00 par value per share and the total number of such shares authorized is

     one hundred million (100,000,000).

 

     The Corporation is also authorized to issue ten million (10,000,000) shares

     of preferred stock.  The relative rights, preferences and limitations of

     such preferred  stock shall be  determined by the  Corporation's  Board of

     Directors in its sole discretion.  The Corporation's Board of Directors

     shall have the sole  authority to issue shares of such  preferred  stock to

     whomever and for  whatever  purposes  it,  in its sole  discretion, deems

     appropriate The Board is expressly authorized to divide such preferred

     shares into separate series,  with each series separately  designated so as

     to distinguish the shares thereof from the shares of all other series. Each

     share of each series of serial preferred stock shall have the same relative

     rights as and be identical in all respects with all the other shares of the

     same series.  Among other things, the Board may designate the following

     variations among any of the  various  series of  preferred  stock  without

     further action of the shareholders of the Corporation:  (a) the distinctive

     serial designation and the number of shares  constituting such series; (b)

     the dividend  rate or the amount of  dividends to be paid on the shares of

     such series,  whether  dividends shall be cumulative and, if so, from which

     date(s) the payment date(s) for dividends,  and the  participating or other

     special rights,  if any, with respect to dividends;  (c) the voting powers,

     full or limited,  if any, of shares of such series;  (d) whether the shares

     of such series shall be redeemable  and, if so, the price(s) at which,  and

     the terms and  conditions  on which,  such shares may be redeemed;  (e) the

     amount(s) payable upon the shares of such series in the event of voluntary

     or involuntary liquidation,  dissolution, or winding up of the Corporation;

     (f) whether the shares of such series shall be entitled to the benefit of a

     sinking or  retirement  fund to be applied to the purchase or redemption of

     such shares, and if so entitled,  the amount of such fund and the manner of

     its application,  including  the  price(s)  at which  such  shares  may be

     redeemed or purchased through the application of such fund; (g) whether the

     shares of such series  shall be  convertible  into,  or  exchangeable  for,

     shares of any other  class or classes of stock of the  Corporation  and, if

     so, the conversion price(s) or the rate(s) of exchange, and the adjustments

     thereof if any, at which such conversion or exchange may be made, and any

     other terms and conditions of such conversion or exchange; (h) the price or

     other consideration  for which the shares of such series  shall be issued;

     and (i) whether the shares of such series  which are  redeemed or converted

     shall have the status of authorized but unissued shares of serial preferred

     stock and whether  such shares may be reissued as shares of the same or any

     other series of serial preferred stock.

 

6.   The optional provisions which the Corporation elects to include in the

     articles of incorporation are as follows:

 

a)   Holders of shares of common stock shall not have the right to cumulate

     their votes in the election of directors.

 

b)   Holders of shares of common stock shall not have preemptive rights to

     subscribe for  additional  shares on a pro rata basis when such additional

     shares are offered for sale by the Corporation.

 

c)   These Articles of Incorporation require the affirmative vote of the holders

     of not less  than  eighty  percent  (80%) of the  outstanding  stock of the

     Corporation entitled to vote for approval if (a) this Corporation merges or

     consolidates with any other  corporation,  or if (b) this Corporation sells

     or exchanges all or a  substantial  part of its assets to or with any other

     corporation or if (c) this  Corporation  issues or delivers  any stock or

     other securities of its issue in exchange or payment for any properties or

     assets  of any  other  corporation,  or  securities  issued  by  any  other

     corporation or in a merger of any subsidiary of this  Corporation (80% or

     more of the common stock of which is held by this Corporation) with or into

     any other  corporation;  provided,  however,  that the foregoing  shall not

     apply  to any plan of  merger  or  consolidation,  or sale or  exchange  of

     assets or issuance or  delivery  of stock or other  securities  which was

     approved (or adopted) and recommended  without condition by the affirmative

     vote of not less than eighty percent (80%) of the  directors,  nor shall it

     apply to any such  transaction  solely between this Corporation and another

     corporation  fifty  percent  (50%) or more of the voting  stock of which is

     owned by this  Corporation.  The Board of Directors  shall be permitted to

     condition  its approval (or  adoption) of any plan of merger or exchange of

     assets, or issuance or delivery of stock or securities upon the approval of

     holders  of  eighty  percent  (80%)  of  the  outstanding   stock  of  this

     Corporation  entitled to vote on such plan of merger or  consolidation,  or

     sale or exchange of assets, or issuance or delivery of stock or securities.

     "Control"  means the  possession,  directly or indirectly,  of the power to

     direct or cause the direction of the  management  and policies of a person,

     whether  through  the  ownership  of voting  securities,  by  contract,  or

     otherwise and, in computing the  percentage of  outstanding  voting stock

     beneficially  owned by any person,  the shares  outstanding  and the shares

     owned  shall be  determined  as of the record date fixed to  determine  the

     stockholders  entitled  to vote or  express  consent  with  respect to such

     proposal.   The   stockholder   vote,   if  any,   required   for  mergers,

     consolidations, sales or exchanges of assets or issuances of stock or other

     securities not expressly  provided for in these Articles of  Incorporation,

     shall be such as may be required by applicable law. A "substantial part" of

     the  Corporation's  assets  shall  mean  assets  the  book  value  of which

     constitutes  more than twenty percent (20%) of the book value,  or the fair

     market value of which  constitutes  more than twenty  percent  (20%) of the

     fair  market  value,  of the  total  assets  of  the  Corporation  and  its

     subsidiaries taken as a whole.

 

d)   The Board of Directors,  when  evaluating any offer of another party to (a)

     make   tender  or  exchange  offer  for  any  equity   security  of  this

     Corporation,  (b)  merge  or  consolidate  this  Corporation  with  another

     corporation or (c) purchase or otherwise acquire all or substantially all

     of the properties and assets of this Corporation, shall, in connection with

     the exercise of its judgment in  determining  what is in the best interests

     of this Corporation and its stockholders, give due consideration to (i) all

     relevant  factors,   including  without   limitation  the  social,   legal,

     environmental and economic effects on the employees,  customers,  suppliers

     and other  constituencies of this Corporation and its subsidiaries,  on the

     communities  and  geographical  areas in  which  this  Corporation  and its

     subsidiaries  operate  or are  located  and on  any of the  businesses  and

     properties of this Corporation or any of its subsidiaries,  as well as such

     other  factors  as the  directors  deem  relevant,  and  (ii)  not only the

     consideration  being offered,  in relation to the then current market price

     for the  Corporation's  outstanding  shares of capital  stock,  but also in

     relation  to  the  then  current  value  of  the  Corporation  in a  freely

     negotiated  transaction and in relation to the board of directors' estimate

     of the future value of this Corporation  (including the unrealized value of

     its properties and assets) as an independent going concern.

 

e)   Any  shareholder  entitled to vote for the election of  directors  may make

     nominations  for the election of directors only by giving written notice to

     the Secretary of the Corporation at least 30 days but not more than 60 days

     prior to the annual meeting of  shareholders  at which  directors are to be

     elected, unless such requirement is waived in advance of the meeting by the

     Board of Directors.

 

f)   The Articles of  Incorporation  require the affirmative vote of the holders

     of not less than eighty percent (80%) of the outstanding  voting securities

     of the  Corporation to remove any Director or the entire Board of Directors

     without cause.

 

g)   The Articles of Incorporation provide for staggered terms of the members of

     the  Board  of  Directors,  in the  following  manner:  When  the  Board of

     Directors  shall consist of nine (9) or more  members,  in lieu of electing

     the whole number of Directors  annually,  the Directors shall be divided by

     the Board into three classes, each class to be as nearly equal in number as

     possible The term of office of  Directors of the first class shall expire

     at the first annual meeting of shareholders  after their election,  that of

     the second  class shall  expire at the second  annual  meeting  after their

     election and that of the third class shall expire at the end of the third

     annual  meeting  after their  election.  At each annual  meeting after such

     classification  the  number of  Directors  equal to the number of the class

     whose  term  expires at the time of such  meeting  shall be elected to hold

     office until the third succeeding annual meeting.

 

h)   The Articles of  Incorporation  require the affirmative vote of the holders

     of not less than eighty percent (80%) of the outstanding  voting securities

     of the  Corporation to approve the dissolution of the  Corporation,  unless

     not  less  than  eighty  percent  (80%)  of  the  Directors   approve  such

     dissolution, in which case approval by affirmative vote of the holders of a

     majority of the outstanding  voting  securities of the Corporation shall be

     sufficient.

 

i)   The Articles of  Incorporation  require the affirmative vote of the holders

     of not less than eighty percent (80%) of the outstanding  voting securities

     of the Corporation to amend the provisions of the Articles of Incorporation

     set forth in Paragraphs (c) through (h)  hereinabove,  unless not less than

     eighty percent (80%) of the Directors approve such amendment, in which case

     approval  by  affirmative  vote of the holders of  two-thirds  (2/3) of the

     outstanding voting securities of the Corporation shall be sufficient.

 

j)   A  director  of the  Corporation  shall  not be  personally  liable  to the

     Corporation or any of its  shareholders  for monetary damages for breach of

     fiduciary  duty as a director,  provided that this  provision  shall not be

     deemed to  eliminate  or limit the  liability  of a  directory  (i) for any

     breach  of  the  director's  duty  of  loyalty  to the  Corporation  or its

     stockholders; (ii) for acts or omissions not in good faith or which involve

     gross negligence,  intentional misconduct,  or a knowing violation of laws;

     (iii) imposed under Section  33-8-330 of the Act (improper  distribution to

     shareholder);  or (iv) for any transaction  from which the director derived

     an improper personal benefit.

 

7.   This  application  will be  effective  upon  acceptance  for  filing by the

     Secretary of State.

 

 

 

Date: March 17, 2003                        The South Financial Group, Inc.

 

                                    By:     /s/William S. Hummers III

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

                                              Signature

 

                                          William S. Hummers III,

                                          Executive Vice President

                                          Type or Print Name and Office

 

 

 

 

 

State Of South Carolina
Secretary Of State

Articles of Amendment

 

Pursuant Section 33-10-106 of the 1976 South Carolina Code of Laws, as amended, the undersigned corporation adopts the following Articles of Amendment to its Articles of Incorporation:

1.

 

The name of the corporation is The South Financial Group, Inc.

 

2.

 

Date of Incorporation: May 21, 1986.

 

3.

 

Agent’s Name and Address: William P. Crawford, Jr., 102 S. Main Street, Greenville, SC 29601.

 

4.

 

On May 6, 2008, the corporation adopted two amendments to its Articles of Incorporation:

 

    Amendment #1

     Section 6(c) of the Articles of Incorporation is hereby removed and replaced with the following:

     Any plan of merger, share exchange, sale of substantially all the company’s assets, consolidation or dissolution (for which shareholder approval is required pursuant to applicable South Carolina law) to be adopted, must be approved by (1) a majority of the votes entitled to be cast on the plan, regardless of the class or voting group to which the shares belong, and (2) a majority of the votes entitled to be cast on the plan within each voting group entitled to vote as a separate voting group on the plan. This majority vote standard is adopted in lieu of the two-thirds vote standard set forth in Sections 33-11-103(e), 33-12-102(e) and 33-14-102(f) of the South Carolina Business Corporation Act of 1988, as amended.

     Sections 6(f), 6(h) and 6(i) of the Articles of Incorporation are hereby removed.

 

     Amendment #2

     A new Section 6(k), having the following language, shall be added:

     Section 6(g) of these Articles of Incorporation shall be subject to the subsequent sentences, and after the 2010 Annual Meeting of Shareholders, Section 6(g) shall be deemed to be of no further force and effect: The class of Directors whose terms end at the 2008 Annual Meeting of Shareholders shall be elected for a three-year term ending in 2011. The class of Directors whose terms end at the 2009 Annual Meeting of Shareholders shall be elected for a two-year term ending in 2011. The class of Directors whose terms end at the 2010 Annual Meeting of Shareholders shall be elected for a one-year term ending in 2011, and subsequent thereto, all Directors shall be elected for one-year terms.

5.

 

The manner, if not set forth in the Amendment, in which any exchange, reclassification, or cancellation of issued shares provided for in the Amendment shall be effected, is as follows: Not applicable.

6.

 

Complete either a or b, whichever is applicable.

 

 

 

 

 

 

 

 

 

 

 

 

 

1.

 

 

ž

 

Amendment adopted by shareholder action.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At the date of adoption of the Amendment, the number of outstanding shares
of each voting group entitled to vote separately on the Amendment, and vote of such shares was:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Number of

 

Number of

 

Number of Votes

 

Number of Undisputed*

 

 

Voting

 

Outstanding

 

Votes Entitled

 

Represented at

 

Shares

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Group

 

Shares

 

to be Cast

 

the Meeting

 

For

 

Against

 

Abstain

Amendment #1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common

 

 

72,619,780

 

 

 

72,619,780

 

 

 

67,551,986

 

 

 

62,739,031

 

 

 

4,363,927

 

 

 

449,219

 

Stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Amendment #2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common

 

 

72,619,780

 

 

 

72,619,780

 

 

 

67,551,986

 

 

 

62,813,621

 

 

 

4,267,577

 

 

 

471,105

 

Stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.

 

 

o

 

Amendment was duly adopted by the incorporators or board of directors without shareholder approval pursuant to Sections 33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South Carolina Code of Laws, as amended and shareholder action was not required.

 

7.

 

Unless a delayed dated is specified, the effective date of these Articles of Amendment shall be the date of acceptance for filing by the Secretary of State. Not applicable.

 

 

 

 

 

Date: May 12, 2008

 

The South Financial Group, Inc. (Name of Corporation)

 

 

 

 

 

 

 

 

 

 

William P. Crawford, Jr., Secretary

 

 

ARTICLES OF AMENDMENT

TO

ARTICLES OF INCORPORATION

OF

THE SOUTH FINANCIAL GROUP, INC.

 

________________________

 

            In accordance with Sections 33-6-102 and 33-10-106 of the South Carolina Business Corporation Act of 1988 (the “Code”), THE SOUTH FINANCIAL GROUP, INC. (the “Corporation”), a corporation organized and existing under and by virtue of the Code, DOES HEREBY CERTIFY:

 

1. The name of the Corporation is The South Financial Group, Inc.

 

2. On May 16, 2010, the Corporation adopted an amendment to the Corporation’s Amended and Restated Articles of Incorporation, as set forth in the following Certificate of Designations:

 

Certificate of Designations of Preferred Stock, Series M

 

3. Such amendment does thereby designate, create, authorize and provide for the issue of one series of preferred stock, having no par value per share and with a liquidation preference of $710.00 per share, which shall be designated as Preferred Stock, Series M, consisting of 100 shares, having the voting powers, preferences and relative, participating, optional and other special rights, and qualifications, limitations and restrictions thereof set forth on the Certificate of Designations attached hereto and made a part hereof.

 

4. Such amendment was duly authorized by the Board of Directors and shareholder action was not required, pursuant to the authority granted in the Corporation’s Amended and Restated Articles of Incorporation and Section 33-6-102 of the Code.

 

5.  The effective date of these Articles of Amendment shall be 10:00am on May 20, 2010 in accordance with the provisions of Section 33-1-230 of the Code.

 

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, does hereby affirm, under penalties of perjury, that this certificate is the act and deed of the Corporation and that the facts herein stated are true, and accordingly has hereunto set his hand as of the 17h day of May, 2010.

THE SOUTH FINANCIAL GROUP, INC.

 

 

By:    /s/ William P. Crawford, Jr.                             

Name: William P. Crawford, Jr.

Title: Executive Vice President and General Counsel

 

 


 

CERTIFICATE OF DESIGNATIONS

OF

PREFERRED STOCK, SERIES M

OF

THE SOUTH FINANCIAL GROUP, INC.

The South Financial Group, Inc., a corporation organized and existing under the laws of the State of South Carolina (the “Corporation”), in accordance with the provisions of Sections 33-6-102 and 33-10-106 of the South Carolina Business Corporation Act of 1988, as amended, does hereby certify as follows:

The board of directors of the Corporation (the “Board of Directors”) or an applicable committee of the Board of Directors, in accordance with the articles of incorporation and bylaws of the Corporation and applicable law, adopted the following resolution on May 16, 2010 creating a series of 100 shares of Preferred Stock of the Corporation designated as “Preferred Stock, Series M”.

RESOLVED, that pursuant to the provisions of the articles of incorporation and the bylaws of the Corporation and applicable law, a series of Preferred Stock, no par value per share, 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:

Section 1.        Designation.  The designation of the series of Preferred Stock created hereby shall be Preferred Stock, Series M, with no par value and a liquidation preference of $710.00 per share (hereinafter referred to as the “Designated Preferred Stock”).  Each share of Designated Preferred Stock shall be identical in all respects to every other share of Designated Preferred Stock.  The Designated Preferred Stock will rank equally with any Parity Stock (as defined below) with respect to the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, if any, and will rank senior to the Common Stock (as defined below) with respect to the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

Section 2.        Number of Shares.  The number of shares of Designated Preferred Stock shall be 100.

Section 3.        Definitions.  As used herein with respect to the Designated Preferred Stock:

Bylaws” shall mean the bylaws of the Corporation, as they may be amended, restated, supplemented or modified from time to time.

 


 

Certificate of Designations” shall mean the Certificate of Designations of the Designated Preferred Stock of the Corporation, as it may be amended, restated, supplemented or modified from time to time.

Charter” shall mean the Corporation’s articles of incorporation, as they may be amended, restated, supplemented or modified from time to time.

Common Stock” shall mean the common stock, $1.00 par value per share, of the Corporation.

Designated Preferred Stock” shall have the meaning set forth in Section 1 of this Certificate of Designations.

Junior Stock” means the Common Stock and any other class or series of capital stock of the Corporation the terms of which expressly provide that it ranks junior to the Designated Preferred Stock with respect to the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

Parity Stock” means any class or series of capital stock of the Corporation (other than the Designated Preferred Stock) the terms of which do not expressly provide that it ranks senior or junior to the Designated Preferred Stock with respect to the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.  Without limiting the foregoing, Parity Stock shall include the Corporation’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2008‑T.

SCBCA” shall mean the South Carolina Business Corporation Act of 1988, as amended.

Section 4.        Dividends.  Holders of Designated Preferred Stock shall not be entitled to receive any dividends.

Section 5.        Liquidation Rights. 

(a)        Liquidation.  In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, the 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 shareholders of the Corporation, subject to the rights of the holders of any class or series of securities ranking senior to the Designated Preferred Stock, the rights of the holders of any Parity Stock and the rights of the Corporation’s creditors, before any distribution of such assets or proceeds is made to or set aside for the holders of any Junior Stock as to such distribution, payment in full of an amount equal to $710.00 per share of Designated Preferred Stock (the “Liquidation Preference”).  The holders of Designated Preferred Stock shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation other than what is expressly provided for in this Section 5.

 


 

(b)        Partial Payment.  If in any distribution described in Section 5(a) above the assets of the Corporation or proceeds thereof are not sufficient to pay in full the Liquidation Preference to all holders of Designated Preferred Stock and the corresponding amounts payable with respect to any Parity Stock as to such distribution to all holders of such Parity Stock, the holders of Designated Preferred Stock and the holders of such Parity 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 Parity Stock as to such distribution have been paid in full to the holders of such Parity Stock, the holders of other capital stock of the Corporation shall be entitled to receive all remaining assets of the Corporation according to their respective rights and preferences.

(d)       Merger, Consolidation and Sale of Assets Not Liquidation.  For purposes of this Section 5, the sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Corporation shall not be deemed a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, nor shall the merger, consolidation or any other business combination transaction of the Corporation into or with any other corporation or person or the merger, consolidation or any other business combination transaction of any other corporation or person into or with the Corporation be deemed to be a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation.

Section 6.        Redemption.

(a)        Optional Redemption by the Holders.  Each holder of shares of Designated Preferred Stock shall have the right to cause the Corporation, upon notice given as provided in Section 6(d) below, to redeem such holder’s Designated Preferred Stock at any time following (i) the Closing (as defined in the Agreement and Plan of Merger, dated as of May 16, 2010, by and among The Toronto-Dominion Bank, Hunt Merger Sub, Inc. and the Corporation (as amended, supplemented or modified from time to time, the “Merger Agreement”)) or (ii) the termination of the Merger Agreement in accordance with its terms, in each case at a redemption price equal to the Liquidation Preference per share of Designated Preferred Stock (the “Redemption Price”) and otherwise as provided for in the Certificate of Designations.

(b)        Optional Redemption by the Corporation.  The Corporation, at the option of its board of directors, may redeem the shares of Designated Preferred Stock at the Redemption Price at any time following the earlier to occur of (i) the Closing (as defined in the Merger Agreement) and (ii) the termination of the Merger Agreement in accordance with its terms.  As an alternative to redemption hereunder in the event that the Corporation is not legally able to effect such redemption (including as a result of the Letter Agreement (including the Securities Purchase Agreement Standard Terms attached thereto), dated December 5, 2008, between the Corporation and the U.S. Department of the Treasury), the Corporation may require the holder of shares of Designated Preferred Stock to effect the conversion of its shares of Designated Preferred Stock as provided for in Section 8 hereof.  Any written request by the Corporation in respect of the foregoing shall be deemed to have the same force and effect as the notice of redemption described in Section 8(c), and shall be irrevocable.

 


 

(c)        Notice by the Corporation of Redemption.  Notice of redemption of the shares of Designated Preferred Stock shall be mailed by first class mail, postage prepaid, addressed to each holder of record of such shares at its last address 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 such notice mailed as provided in this Section 6(c) shall be conclusively presumed to have been duly given, whether or not the holders receive such notice.  Each notice shall state (i) the redemption date; and (ii) the place where the Designated Preferred Stock is to be redeemed.

(d)       Notice by Holders of Election to Cause Redemption.  Notice by any holder of redemption of such holder’s shares of Designated Preferred Stock shall be mailed by first class mail, postage prepaid, addressed to the Secretary of the Corporation.  Such mailing shall be at least 30 days and not more than 60 days before the date fixed by such holder for redemption.  Any such notice shall state (i) the redemption date; and (ii) the place where the Designated Preferred Stock is to be redeemed.

(e)        Effectiveness of Redemption.  If notice of redemption or the election to cause redemption, as applicable, has been duly given by the Corporation or by the holders, as applicable, and if on or before the redemption date specified in the notice all funds necessary for such redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the benefit of the holders of such shares, so as to be and continue to be available therefor, then, notwithstanding that the certificate for the shares so called for redemption has not been surrendered for cancellation, on and after the redemption date such shares shall cease to be 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.

(g)        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 7.        Voting Rights.  The holders of shares of Designated Preferred Stock shall have the voting rights set forth in this Section 7 and as otherwise required by applicable law.

(a)        The holders of shares of Designated Preferred Stock shall be entitled to vote each share of Designated Preferred Stock on all matters submitted to a vote of the shareholders of the Corporation, with each share of Designated Preferred Stock having a number of votes equal to (x) 39.9% of the aggregate voting power of all capital stock issued and outstanding (including the Common Stock and all shares of Designated Preferred Stock) and entitled to vote thereon divided by (y) the number of shares of Designated Preferred Stock issued and outstanding, in each case as of the applicable record date.  The holders of shares of Designated Preferred Stock and the holders of shares of Common Stock shall vote together as a single class on all matters submitted to a vote of the shareholders of the Corporation, and the holders of shares of Designated Preferred Stock shall be entitled to vote separately as a single class with respect to those matters expressly set forth in Section 7(b). 

 


 

(b)        Without the consent of the holders of at least 66-2/3% of the then issued and outstanding shares of Designated Preferred Stock, voting together as a single class and as a separate class from all other capital stock of the Corporation, the Corporation shall not: (i) issue or authorize for issuance any shares of Designated Preferred Stock or any rights, warrants, options, commitments or securities to acquire any Designated Preferred Stock (including any securities directly or indirectly convertible or exchangeable into any of the foregoing), (ii) increase or decrease the authorized number of shares of Designated Preferred Stock, or (iii) amend, alter or repeal any provision of the Certificate of Designations, the Charter or the Bylaws in any respect (including 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, including but not limited to by creating any other series of preferred stock or other new class or series of capital stock or other securities having general voting rights or having the right to vote on the plan of merger contained in the Merger Agreement and submitted by the Board of Directors for approval thereof by the shareholders of the Corporation pursuant to Section 33-11-103 of the SCBCA, or on any other share exchange, reclassification, merger, consolidation or other business combination transaction involving the Corporation other than any such rights as are currently held by holders of any Parity Stock outstanding as of the date hereof.  On each matter voted on by the holders of Designated Preferred Stock voting as a separate class as provided in this Section 7(b), each share of Designated Preferred Stock is entitled to one vote.

Section 8.        Conversion. 

(a)        At any time following the termination of the Merger Agreement, upon the terms and in the manner set forth in this Section 8, each share of Designated Preferred Stock shall be convertible, at the option of the holder thereof, into 10 fully paid and non-assessable shares of Common Stock.

(b)        Immediately upon conversion, the rights of a holder with respect to such holder’s shares of Designated Preferred Stock so converted shall cease and the person entitled to receive the shares of Common Stock upon the conversion of such shares of Designated Preferred Stock shall be treated for all purposes as having become the record and beneficial owner of such shares of Common Stock.

(c)        A holder of any shares of Designated Preferred Stock may exercise the conversion rights as to any such shares of Designated Preferred Stock by delivering to the Corporation during regular business hours, at the principal office of the Corporation, the certificate or certificates for the shares to be converted, duly endorsed for transfer to the Corporation (if required by it), accompanied by written notice stating that such holder elects to convert such shares.  Conversion shall be deemed to have been effected on the date when such delivery is made, and such date is referred to herein as the “Conversion Date.” As promptly as practicable thereafter, the Corporation shall issue and deliver to such holder, a certificate or certificates for the number of shares of Common Stock to which such holder is entitled.  The holder shall be deemed to have become a shareholder of record on the applicable Conversion Date unless the transfer books of the Corporation are closed on such date, in which event he shall be deemed to have become a Common Stock shareholder of record on the next succeeding date on which the transfer books are open.  Upon conversion of only a portion of the number of shares of Designated Preferred Stock represented by a certificate surrendered for conversion, the Corporation shall issue and deliver upon the written order of the holder of the certificate so

 


surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of Designated Preferred Stock representing the unconverted shares of the certificate so surrendered.

(d)       The Corporation shall at all times reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of Designated Preferred Stock as provided for herein, the full number of shares of Common Stock deliverable upon the conversion of all Designated Preferred Stock from time to time outstanding.

Section 9.        No Sinking Fund.  The shares of Designated Preferred Stock are not subject to the operation of a sinking fund.

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.      No Transfer.  The holders of Designated Preferred Stock shall not, directly or indirectly, sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of, the Designated Preferred Stock; provided that a holder of Designated Preferred Stock may, directly or indirectly, sell, assign, transfer, encumber and otherwise dispose of the Designated Preferred Stock to any of its wholly-owned subsidiaries.

Section 12.      Record Holders.  To the fullest extent permitted by applicable law, the Corporation 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 the Corporation shall not be affected by any notice to the contrary.

Section 13.      Notices.  Except as otherwise expressly set forth herein, all notices or communications in respect of the 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 the Certificate of Designations, the Charter or Bylaws or by applicable law.

Section 14.      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 15.      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.

 [As filed 5/19/2010]