Certificate of Designation for Series A Noncumulative Perpetual Preferred Stock of Taylor Capital Group, Inc.

Summary

Taylor Capital Group, Inc. has established a new class of preferred stock called Series A Noncumulative Perpetual Preferred Stock, with a stated value of $25.00 per share and a total of 1,530,000 shares authorized. Holders of this stock are entitled to noncumulative quarterly dividends if declared by the Board of Directors, but missed dividends do not accumulate. The certificate outlines the rights, preferences, and conditions for these shares, including dividend payment terms and the process for redemption or reissuance of shares.

EX-4.1 3 c69715ex4-1.txt EX-4.1 CERTIFICATE OF DESIGNATION OF SERIES A 9% EXHIBIT 4.1 CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF FIXED RATE NONCUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A OF TAYLOR CAPITAL GROUP, INC. ____________________________ Pursuant to Section 151 of the General Corporation Law of the State of Delaware _____________________________ TAYLOR CAPITAL GROUP, INC., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), in accordance with Section 151 of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. The Certificate of Incorporation of the Corporation (the "Certificate of Incorporation"), fixes the total number of shares of all classes of capital stock which the Corporation shall have the authority to issue at Ten Million (10,000,000) shares, of which Three Million (3,000,000) shares shall be shares of Preferred Stock, par value $.01 (herein referred to as "Preferred Stock"), and of which Seven Million (7,000,000) shares shall be shares of Common Stock of the par value of $.01 per share (herein referred to as "Common Stock"). 2. The Certificate of Incorporation expressly grants to the Board of Directors of the Corporation (the "Board of Directors") authority to provide for the issuance of said Preferred Stock in one or more series, with such voting powers, full or limited or without voting powers, and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue thereof adopted by the Board of Directors and as are not stated and expressed in the Certificate of Incorporation. 3. Pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, the Board of Directors, on December __, 1996, by unanimous written consent of a duly authorized committee thereof, duly authorized and adopted the following resolutions providing for an issue of a series of its Preferred Stock to be designated "__% Noncumulative Perpetual Preferred Stock, Series A (par value $.01 per share)": "RESOLVED that an issue of a series of Preferred Stock of the Corporation, par value $.01 per share (the Preferred Stock of the Corporation being herein referred to as "Preferred Stock", which term shall include any additional shares of Preferred Stock of the same class hereafter authorized to be issued by the Corporation) consisting of One Million Five Hundred Thirty Thousand (1,530,000) shares is hereby provided for, and the voting power, designation, preferences and relative participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of such series shall be as set forth below: 1. Designation: Number of Shares. (a) The designation of such series of Preferred Stock shall be "__% Noncumulative Perpetual Preferred Stock, Series A" (hereinafter referred to as the "Series A Preferred"), stated value $25.00, and the number of authorized shares constituting the Series A Preferred is One Million Five Hundred Thirty Thousand (1,530,000). No fractional shares of Series A Preferred shall be issued. (b) Any shares of Series A Preferred which at any time have been redeemed by the Corporation shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated as part of a particular series of Preferred Stock by the Board of Directors. 2. Dividends. (a) (i) Holders of shares of Series A Preferred shall be entitled to receive noncumulative cash dividends, payable quarterly in arrears for such quarter, when, as and if declared by the Board of Directors, or a duly authorized committee thereof, out of funds legally available therefor, for a dividend period (a "Dividend Period") commencing on the date of original issuance of the Series A Preferred to and including March 31, 1997, and for each quarterly period thereafter commencing on the first day of each April, July, October and January and ending on and including the day next preceding the first day of the next Dividend Period at a rate per annum as follows: (A) for each Dividend Period, at an annual rate of ___% per stated value of each share (the "Fixed Rate"). The amount of dividends per share payable for any period of less than a quarter will be paid on the basis of a 360-day year consisting of -2- twelve 30-day months. The amount of dividends payable per share of Preferred Stock for each Dividend Period shall be computed by dividing the amount of dividends due on an annual basis by four. (ii) Dividends as provided for in this Section 2 shall accrue from the date of original issuance and shall be payable when, as and if declared by the Board of Directors, or a duly authorized committee thereof, out of funds legally available therefor, for a Dividend Period on the first of each April, July, October and January, commencing on April 1, 1997 (each, a "Dividend Payment Date"), to the holders of record on a date not more than 30 days and not less than 10 days preceding the related Dividend Payment Date, as may be determined by the Board of Directors, or a duly authorized committee thereof, in advance of such Dividend Payment Date. When a Dividend Payment Date falls on a non-business day, the dividend will be paid on the next business day. (b) Dividends on shares of Series A Preferred shall be noncumulative so that if a dividend on the shares of Series A Preferred with respect to any Dividend Period is not declared by the Board of Directors, or any duly authorized committee thereof, then the Corporation shall have no obligation at any time to pay a dividend on the shares of Series A Preferred for such Dividend Period whether or not dividends are paid for any subsequent Dividend Period. Holders of the shares of Series A Preferred shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the noncumulative dividends declared by the Board of Directors, or a duly authorized committee thereof, as set forth herein. (c) No full dividends shall be declared or paid or set apart for payment on any share of any series of Preferred Stock or any share of any other class of stock, or series thereof, in any such case ranking on a parity with or junior to the Series A Preferred as to dividends unless full dividends for the then- current Dividend Period on the Series A Preferred have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof, and for all prior Dividend Periods for which dividends were declared, set apart for such payment. When dividends are not paid in full upon the Series A Preferred and any other series or class of stock ranking on a parity with the Series A Preferred as to dividends, all dividends declared upon the Series A Preferred and such other series or class of stock shall be declared pro rata so that the amount of dividends declared per share on the Series A Preferred and such other series or class of stock shall in all cases bear the same -3- ratio that accrued dividends per share (which in the case of the Series A Preferred shall not include any accumulation in respect of undeclared or unpaid dividends for prior Dividend Periods) on the Series A Preferred and on such other series or class of stock bear to each other. (d) So long as any shares of Series A Preferred shall be outstanding, unless full dividends on all outstanding shares of Series A Preferred shall have been declared and paid or set apart for payment for the current Dividend Period and have been paid for all Dividend Periods for which dividends were declared and except as provided in Section 2(c), (i) no dividend (other than a dividend in Common Stock or in any other stock of the Corporation ranking junior to the Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up) shall be declared and paid or set aside for payment, or other distribution declared or made, on the Common Stock or on any other stock ranking junior to or on a parity with Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up, and (ii) no shares of Common Stock or shares of any other stock of the Corporation ranking junior to or on a parity with Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up shall be redeemed, purchased or otherwise acquired for any consideration by the Corporation or any subsidiary of the Corporation (nor may any moneys be paid to or made available for a sinking or other fund for the redemption, purchase or other acquisition of any shares of any such stock), other than by conversion into or exchange for Common Stock or any other stock of the Corporation ranking junior to Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up. 3. Redemption. (a) Issued and outstanding shares of Series A Preferred are not redeemable prior to January 15, 2002. On or after such date, the shares of Series A Preferred will be redeemable at the option of the Corporation, at any time or from time to time on not less than 30, nor more than 60 days written notice at a redemption price of $25.00 per share, plus an amount equal to dividends declared and unpaid for the then- current Dividend Period (without accumulation of accrued and unpaid dividends for prior Dividend Periods unless previously declared and without interest) to the date fixed for redemption. (b) (i) In the event the Corporation shall redeem shares of Series A Preferred, notice of such redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 days nor more than 60 days prior to the -4- date fixed for redemption, to each holder of record of the shares to be redeemed, at such holder's address as the same appears on the books of the Corporation. Each such notice shall state: (A) the date fixed for redemption; (B) the redemption price (specifying the amount of declared and unpaid dividends to be included therein) and the manner in which such redemption price is to be paid and delivered; (C) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; (D) that dividends on the shares to be redeemed will cease to accrue as of the date fixed for redemption; and (E) the provision hereunder pursuant to which such redemption is being made. No defect in the notice of redemption or in the mailing thereof shall affect the validity of the redemption proceedings, and the failure to give notice to any holder of shares of Series A Preferred to be so redeemed shall not affect the validity of the notice given to the other holders of shares of Series A Preferred to be so redeemed. (ii) In the event the Corporation shall redeem shares of Series A Preferred, on or before 12:00 noon, Chicago time, on the date fixed for redemption, the Corporation shall deposit with a paying agent (which may be an affiliate of the Corporation) (a "Paying Agent"), which shall be a bank or trust company organized and in good standing under the laws of the United States, the State of Illinois or the State of New York, and having capital, surplus and undivided profits aggregating at least $100,000,000, funds necessary for such redemption, in trust, with irrevocable instructions and authorization that such funds be applied to the redemption of the shares of Series A Preferred called for redemption upon surrender of certificates for such shares (properly endorsed or assigned for transfer). (iii) If such notice of redemption shall have been duly mailed or if the Corporation shall have given to a Paying Agent irrevocable authorization promptly to mail such notice, and if on or before the redemption date specified therein the funds necessary for such redemption shall have been deposited by the Corporation with a Paying Agent in trust for the pro rata benefit of the holders of the shares of Series A Preferred called for redemption, together with irrevocable instructions that such funds be applied to such redemption, then, notwithstanding that any certificate for shares of Series A Preferred so called for redemption shall not have been surrendered for cancellation, from and after the time of such deposit, all shares of Series A Preferred so called for redemption shall no longer be deemed to be outstanding and all rights with respect to such shares of Series A Preferred shall forthwith cease and terminate, -5- except for the right of the holders thereof to receive from such Paying Agent at any time after the time of such deposit the funds so deposited, without any interest thereon. (iv) Any interest accrued on funds deposited with a Paying Agent in connection with any redemption of shares of Series A Preferred shall be paid to the Corporation from time to time and the holders of any such shares to be redeemed with such money shall have no claim to any such interest. Any funds deposited and unclaimed at the end of two years from any redemption date shall be repaid or released to the Corporation, after which the holder or holders of shares of Series A Preferred so called for redemption shall look only to the Corporation for payment of the redemption price, without any interest thereon. (c) Upon surrender in accordance with such notice of the certificate for any shares to be redeemed (properly endorsed or assigned for transfer), such shares shall be redeemed by the Corporation at the applicable redemption price. (d) In no event shall the Corporation redeem less than all the outstanding shares of Series A Preferred, unless dividends for the then-current Dividend Period (without accumulation of any accrued and unpaid dividends for prior Dividend Periods unless previously declared and without interest) to the date fixed for redemption shall have been declared and paid or set apart for payment on all outstanding shares of Series A Preferred; provided, however, that the foregoing shall not prevent, if otherwise permitted, the purchase or acquisition by the Corporation of shares of Series A Preferred pursuant to a tender or exchange offer made on the same terms to holders of all the outstanding shares of Series A Preferred and mailed to the holders of record of all such outstanding shares at such holders' addresses as the same appear on the books of the Corporation; and provided further that if some, but less than all, of the shares of Series A Preferred are to be purchased or otherwise acquired pursuant to such tender or exchange offer and the number of such shares so tendered exceeds the number of shares so to be purchased or otherwise acquired by the Corporation, the shares of Series A Preferred so tendered shall be purchased or otherwise acquired by the Corporation on a pro rata basis (with adjustments to eliminate fractions) according to the number of such shares duly tendered by each holder so tendering shares of Series A Preferred for such purchase or exchange. (e) If less than all of the outstanding shares of Series A Preferred are to be redeemed, the Corporation will select the shares to be redeemed by lot, pro rata (as nearly may -6- be), or in such other equitable manner as the Board of Directors of the Company may determine. 4. Liquidation Preference. (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of Series A Preferred shall be entitled to receive out of the assets of the Corporation available for distribution to stockholders, before any distribution of assets shall be made to the holders of shares of Common Stock or of any other class or series of stock ranking junior to the Series A Preferred as to such a distribution, an amount equal to $25.00 per share, plus an amount equal to any dividends declared and unpaid for the then-current Dividend Period (without accumulation of accrued and unpaid dividends for prior Dividend Periods unless previously declared) to the date fixed for payment of such distribution. (b) If upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the assets of the Corporation will be insufficient to make the full liquidating payment with respect to shares of Series A Preferred and liquidating payments on shares of any other class or series of stock of the Corporation ranking on a parity with the Series A Preferred as to any such distribution, then such assets will be distributed among the holders of shares of Series A Preferred and the holders of shares of such other class or series of stock, ratably in proportion to the respective full preferential amounts to which they are entitled. (c) After payment to the holders of shares of Series A Preferred of the full preferential amounts provided for in this Section 4, the holders of such shares shall not be entitled to any further participation in any distribution of assets by the Corporation. (d) A consolidation or merger of the Corporation with or into any other corporation or corporations, or the sale, lease or conveyance of all or substantially all the assets of the Corporation, whether for cash, shares of stock, securities or properties, shall not be regarded as a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 4. (e) Written notice of liquidation, dissolution or winding up of the Corporation stating (i) the payment date, (ii) the amount of payment and (iii) the place where the amounts distributed shall be payable, shall be given by first-class mail, postage prepaid, mailed not less than 30 days prior to the payment date stated therein, to the holders of record of the -7- Series A Preferred as of such notice date at such holder's address as the same appears on the books of the Corporation. 5. Conversion and Exchange. The holders of shares of Series A Preferred shall not have any rights to convert such shares into, or to exchange such shares for, shares of Common Stock, any other class or classes of capital stock (or any other security) or any other series of any class or classes of capital stock (or any other security) of the Corporation. 6. Voting Rights. (a) Holders of shares of Series A Preferred shall have no voting rights, either general or special, except as expressly provided by applicable law or as specified in this Section 6. (b) Holders of shares of Series A Preferred, voting separately as a class with the holders of any one or more other series of Preferred Stock then entitled to vote thereon, shall be entitled at the Corporation's next annual meeting of stockholders and at each subsequent annual meeting of stockholders to cast one vote (or fraction thereof) for each $25.00 of liquidation preference to which such Preferred Stock is entitled for the election of one director of the Corporation, with the remaining directors of the Corporation to be elected by the holders of the shares of any other class or classes or series of stock entitled to vote therefor. Any director who has been so elected by the holders of shares of Preferred Stock may be removed at any time, with or without cause, only by the affirmative vote of the holders of the shares at the time entitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders called for that purpose, and any vacancy thereby created may only be filled by the vote of such holders. (c) (i) If a Voting Event (as defined below) occurs, the number of members of the Board of Directors automatically shall be increased by one and the holders of shares of Series A Preferred, voting separately as a class with the holders of shares of any one or more other series of Preferred Stock entitled to vote upon the occurrence of such Voting Event, shall be entitled commencing at the Corporation's next annual meeting of stockholders, unless prior thereto such Voting Event has been terminated, to cast one vote (or fraction thereof) for each $25.00 of liquidation preference to which such Preferred Stock is entitled for the election of one additional director of the Corporation, with the remaining directors of the Corporation to be elected by the holders of the shares of any other class or classes or series of stock entitled to vote -8- therefor; provided, however, that the Board of Directors at no time will include more than two directors who have been elected by the holders of shares of Preferred Stock voting separately as a class. Until such Voting Event has been terminated, any director who has been elected as described in this section 6(c)(i) by the holders of shares of Preferred Stock may be removed at any time, with or with or without cause, only by the affirmative vote of the holders of the shares at the time entitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders called for that purpose, and any vacancy thereby created may only be filled by the vote of such holders. If and when such Voting Event has been terminated, the holders of shares of Preferred Stock then outstanding and so authorized will be divested of the foregoing special voting rights, subject to revesting upon further occurrence of a Voting Event, Upon termination of such Voting Event, the terms of office of any person who may have been elected a director by vote of the holders of shares of Series A Preferred and such other series of Preferred Stock pursuant to the foregoing special voting rights will immediately terminate. (ii) A "Voting Event" shall be deemed to have occurred in the event that dividends payable on any share or shares of Series A Preferred shall not be declared and paid at the stated rate for the equivalent of six full quarterly Dividend Periods (whether or not consecutive). A Voting Event shall be deemed to have been terminated when all such dividends in arrears have been declared and paid or declared and set apart for payment in full, subject always to the revesting of the rights of holders of the Series A Preferred voting as a class with the holders of any other Preferred Stock, to elect a director as provided above in the event of any future failure on the part of the Corporation to pay dividends at the stated rate for any six full quarterly Dividend Periods (whether or not consecutive). (d) So long as any shares of Series A Preferred remain outstanding, without the consent of the holders of shares entitled to cast at least two-thirds of the votes entitled to be cast by the holders of the total number of shares of Preferred Stock then outstanding, voting separately as a class without regard to series, with the holders of shares of Preferred Stock being entitled to cast one vote (or fraction thereof) for each $25.00 of liquidation preference to which such stock is entitled, the Corporation may not: (i) create, authorize or issue, or increase the authorized or issued amount of any class or series of stock of the Corporation or any warrants, options or other rights convertible or exchangeable into any class or series of any capital stock of the Corporation which shall have preference, or be on a parity with, as to dividends or distributions of assets upon liquidation, -9- dissolution or winding up over the Series A Preferred or (ii) amend, alter or repeal (whether by merger, consolidation or otherwise) any provision of the Certificate of Incorporation or this Certificate of Designation, Preferences and Rights of the Corporation so as to adversely affect the powers, preferences or special rights of the Series A Preferred or holders thereof; provided, however, that an increase in the authorized amount of Preferred Stock or the creation of any class or series of stock ranking junior to the shares of Series A Preferred as to dividends and/or distributions of assets upon liquidation, dissolution or winding up shall not be deemed to adversely affect the voting power, preferences or special rights of the holders of shares of Series A Preferred. The foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which such voting would otherwise be required occurs, all outstanding shares of Series A Preferred shall have been (x) redeemed or called for redemption and sufficient funds, together with irrevocable instructions to the Paying Agent to apply such funds, shall have been deposited in trust, to effect such redemption in accordance with Section 3(b)(ii) or 3(b)(iii) hereof, or (y) purchased or otherwise acquired and cancelled. 7. Priority as to Certain Distributions. As a series of Preferred Stock, the shares of Series A Preferred shall be entitled to such rights and priorities, and subject to such limitations, as to dividends as are set forth in these resolutions and in the Certificate of Incorporation. 8. Sinking Fund. No sinking fund shall be provided for the purchase or redemption of shares of the Series A Preferred. 9. Ranking. For purposes hereof, any class or series of stock of the Corporation shall be deemed to rank: (a) prior to the Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of Series A Preferred; (b) on a parity with the Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates, redemption prices or liquidation preferences per share thereof are different from those of the Series A Preferred, if the holders of such class or series of stock and of the Series A Preferred shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in proportion to their respective -10- dividend amounts or liquidation preferences, without preference or priority to the holders of Series A Preferred; and (c) junior to the Series A Preferred as to dividends or distribution of assets upon liquidation, dissolution or winding up, if such stock shall be Common Stock or if the holders of the Series A Preferred shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of shares of such class or series. 10. Exclusion of Other Rights. Unless otherwise required by law, shares of Series A Preferred shall not have any rights, including preemptive rights, or preferences other than those specifically set forth herein or as provided by applicable law. 11. Notices. All notices or communications, unless otherwise specified in the By-laws of the Corporation, the Certificate of Incorporation or otherwise in these resolutions, shall be sufficiently given if in writing and delivered in person or mailed by first-class mail, postage prepaid. Notice shall be deemed given on the earlier of the date received or the date such notice is mailed. 12. Captions. The captions and headings set forth in these resolutions are for convenience of reference only and are not a part of, nor shall they affect the interpretation or construction of, these resolutions. * * * -11- IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by Jeffrey W. Taylor and J. Christopher Alstrin, its Chairman of the Board and Chief Executive Officer and Chief Financial Officer, respectively, and attested to by J. Christopher Alstrin, its Secretary, as of the date first written above. TAYLOR CAPITAL GROUP, INC. By: /s/ Jeffrey W. Taylor ------------------------------------ Jeffrey W. Taylor Its: Chairman of the Board and Chief Executive Officer By: /s/ J. Christopher Alstrin ------------------------------------ J. Christopher Alstrin Its: Chief Financial Officer ATTEST By /s/ J. Christopher Alstrin -------------------------- J. Christopher Alstrin Its: Secretary -12-