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EXHIBIT 3.3
CERTIFICATE OF DESIGNATION
OF THE BOARD OF DIRECTORS OF DORAL FINANCIAL CORPORATION
8.35% NONCUMULATIVE MONTHLY INCOME PREFERRED STOCK, SERIES B
(Pursuant to Article 5.01 of the General Corporation Law of the
Commonwealth of Puerto Rico)
We, the undersigned, President and Assistant Secretary of DORAL
FINANCIAL CORPORATION (hereinafter called the "Corporation"), a corporation duly
organized and existing under the laws of the Commonwealth of Puerto Rico, do
hereby certify that, pursuant to the authority conferred upon the Board of
Directors of the Corporation by the Restated Certificate of Incorporation of the
Corporation and resolutions adopted by the Board of Directors creating a
committee thereof known as the "Preferred Stock Pricing Committee," the said
Preferred Stock Pricing Committee on August 29, 2000 adopted the following
resolutions creating a series of 2,000,000 shares of Serial Preferred Stock
designated as the "8.35% Noncumulative Monthly Income Preferred Stock, Series
B."
RESOLVED, that pursuant to the authority expressly granted to
and vested in the Board of Directors of the Corporation and delegated
to the Preferred Stock Pricing Committee in accordance with the
provisions of its Restated Certificate of Incorporation, a series of
Serial Preferred Stock of the Corporation be and it hereby is created.
FURTHER RESOLVED, that the Preferred Stock Pricing Committee
designated by the Board of Directors has determined that the
preferences and relative, participating, optional or other special
rights of the shares of such series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, as stated and
expressed herein, are under the circumstances prevailing on the date
hereof fair and equitable to all the existing shareholders of the
Corporation.
FURTHER RESOLVED, that the designation and amount of such
series and the voting powers, preferences and relative, participating,
optional or other special rights of the shares of such series of
Preferred Stock, and the qualifications, limitations or restrictions
thereof are as follows:
A. DESIGNATION AND AMOUNT
The shares of such series of Preferred Stock shall be
designated as the "8.35% Noncumulative Monthly Income Preferred Stock,
Series B" (hereinafter called the "Series B Preferred Stock"), and the
number of authorized shares constituting such series shall be
2,000,000.
B. DIVIDENDS
1. Holders of record of the Series B Preferred Stock
("Holders") will be entitled to receive, when, as and if declared by
the Board of Directors of the Corporation or an authorized committee
thereof (the "Board of Directors"), out of funds of the Corporation
legally available therefor, noncumulative cash dividends at the annual
rate per share of 8.35% of their liquidation preferences, or $0.173958
per share per month, with each aggregate payment made to each record
holder of the Series B Preferred Stock being rounded to the next lowest
cent.
2. Dividends on the Series B Preferred Stock will accrue from
their date of original issuance and will be payable (when, as and if
declared by the Board of Directors of the Corporation out of funds of
the Corporation legally available therefor) monthly in arrears in
United States dollars commencing on September 30, 2000, and on the last
day of each calendar month of
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each year thereafter to the holders of record of the Series B Preferred
Stock as they appear on the books of the Corporation on the fifteenth
day of the month for which the dividends are payable. In the case of
the dividend payable on September 30, 2000, such dividend shall cover
the period from the date of issuance of the Series B Preferred Stock to
September 30, 2000. In the event that any date on which dividends are
payable is not a Business Day (as defined below), then payment of the
dividend payable on such date will be made on the next succeeding
Business Day without any interest or other payment in respect of any
such delay, except that, if such Business Day is in the next succeeding
calendar year, such payment will be made on the Business Day
immediately preceding the relevant date of payment, in each case with
the same force and effect as if made on such date. A "Business Day" is
a day other than a Saturday, Sunday or a general bank holiday in San
Juan, Puerto Rico or New York, New York.
3. Dividends on the Series B Preferred Stock will be
noncumulative. The Corporation is not obligated or required to declare
or pay dividends on the Series B Preferred Stock, even if it has funds
available for the payment of such dividends. If the Board of Directors
of the Corporation does not declare a dividend payable on a dividend
payment date in respect of the Series B Preferred Stock, then the
holders of such Series B Preferred Stock shall have no right to receive
a dividend in respect of the monthly dividend period ending on such
dividend payment date and the Company will have no obligation to pay
the dividend accrued for such monthly dividend period or to pay any
interest thereon, whether or not dividends on such Series B Preferred
Sock are declared for any future monthly dividend period.
4. The amount of dividends payable for any monthly
dividend period will be computed on the basis of twelve 30-day months
and a 360-day year. The amount of dividends payable for any period
shorter than a full monthly dividend period will be computed on the
basis of the actual number of days elapsed in such period.
5. Subject to any applicable fiscal or other laws and
regulations, each dividend payment will be made by dollar check drawn
on a bank in New York, New York or San Juan, Puerto Rico and mailed to
the record holder thereof at such holder's address as it appears on the
register for such Series B Preferred Stock.
6. So long as any shares of the Series B Preferred Stock
remain outstanding, the Corporation shall not declare, set apart or pay
any dividend or make any other distribution of assets (other than
dividends paid or other distributions made in stock of the Corporation
ranking junior to the Series B Preferred Stock as to the payment of
dividends and the distribution of assets upon liquidation, dissolution
or winding up of the Corporation) on, or redeem, purchase, set apart or
otherwise acquire (except upon conversion or exchange for stock of the
Corporation ranking junior to the Series B Preferred Stock as to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation), shares of common stock
or of any other class of stock of the Corporation ranking junior to the
Series B Preferred Stock as to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up of
the Corporation, unless (i) all accrued and unpaid dividends on the
Series B Preferred Stock for the twelve monthly dividend periods ending
on the immediately preceding dividend payment date shall have been paid
or are paid contemporaneously and the full monthly dividend on the
Series B Preferred Stock for the then current month has been or is
contemporaneously declared and paid or declared and set apart for
payment, and (ii) the Corporation has not defaulted in the payment of
the redemption price of any shares of Series B Preferred Stock called
for redemption.
7. When dividends are not paid in full on the Series B
Preferred Stock and any other shares of stock of the Corporation
ranking on a parity as to the payment of dividends with the Series B
Preferred Stock, all dividends declared upon the Series B Preferred
Stock and any such other shares of stock of the Corporation will be
declared pro rata so that the amount of dividends
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declared per share on the Series B Preferred Stock and any such other
shares of stock will in all cases bear to each other the same ratio
that the accrued dividends per share on the Series B Preferred Stock
for the then current dividend period bears to the accrued dividends per
share on such other shares of stock (which shall not include any
accrual in respect of unpaid dividends for prior dividend periods if
such preferred stock does not have a cumulative dividend).
8. Holders of record of the Series B Preferred Stock
will not be entitled to any dividend, whether payable in cash,
property or stock, in excess of the dividends provided for herein on
the shares of Series B Preferred Stock.
C. CONVERSION
1. The Series B Preferred Stock will not be convertible
into or exchangeable for any other securities of the Corporation.
D. REDEMPTION AT THE OPTION OF THE CORPORATION
1. The shares of the Series B Preferred Stock are not
redeemable prior to September 30, 2005. On and after that date, the
shares of the Series B Preferred Stock will be redeemable in whole or
in part from time to time at the option of the Corporation, with the
consent of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") to the extent required by D. 8 below, upon not
less than thirty nor more than sixty days' notice by mail, at the
redemption prices set forth below, during the twelve-month periods
beginning on September 30, 2005 of the years set forth below, plus
accrued and unpaid dividends from the dividend payment date immediately
preceding the redemption date (without any cumulation for unpaid
dividends for prior dividend periods on the Series B Preferred Stock)
to the date fixed for redemption.
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2005..................................... $25.50
2006..................................... $25.25
2007 and thereafter...................... $25.00
</TABLE>
2. In the event that less than all of the outstanding
shares of the Series B Preferred Stock are to be redeemed in any
redemption at the option of the Corporation, the total number of shares
to be redeemed in such redemption shall be determined by the Board of
Directors and the shares to be redeemed shall be allocated pro rata or
by lot as may be determined by the Board of Directors or by such other
method as the Board of Directors may approve and deem equitable,
including any method to conform to any rule or regulation of any
national or regional stock exchange or automated quotation system upon
which the shares of the Series B Preferred Stock may at the time be
listed or eligible for quotation.
3. Notice of any proposed redemption shall be given by
the Corporation by mailing a copy of such notice to the holders of
record of the shares of Series B Preferred Stock to be redeemed, at
their address of record, not more than sixty nor less than thirty days
prior to the redemption date. The notice of redemption to each holder
of shares of Series B Preferred Stock shall specify the number of
shares of Series B Preferred Stock to be redeemed, the redemption date
and the redemption price payable to such holder upon redemption, and
shall state that from and after said date dividends thereon will cease
to accrue. If less than all the shares owned by a holder are then to be
redeemed at the option of the Corporation, the notice shall also
specify the number of shares of Series B Preferred Stock which are to
be redeemed and the numbers of the certificates
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representing such shares. Any notice which is mailed as herein provided
shall be conclusively presumed to have been duly given, whether or not
the stockholder receives such notice; and failure duly to give such
notice by mail, or any defect in such notice, to the holders of any
stock designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Series B
Preferred Stock.
4. Notice having been mailed as aforesaid, from and
after the redemption date (unless default be made in the payment of the
redemption price for any shares to be redeemed), all dividends on the
shares of Series B Preferred Stock called for redemption shall cease to
accrue and all rights of the holders of such shares as stockholders of
the Corporation by reason of the ownership of such shares (except the
right to receive the redemption price, on presentation and surrender of
the respective certificates representing the redeemed shares), shall
cease on the redemption date, and such shares shall not after the
redemption date be deemed to be outstanding. In case less than all the
shares represented by any such certificate are redeemed, a new
certificate shall be issued without cost to the holder thereof
representing the unredeemed shares.
5. At its option, the Corporation may, on or prior to
the redemption date, irrevocably deposit the aggregate amount payable
upon redemption of the shares of the Series B Preferred Stock to be
redeemed with a bank or trust company designated by the Board of
Directors having its principal office in New York, New York, San Juan,
Puerto Rico, or any other city in which the Corporation shall at that
time maintain a transfer agency with respect to its capital stock, and
having a combined capital and surplus (as shown by its latest published
statement) of at least $50,000,000 (hereinafter referred to as the
"Depositary"), to be held in trust by the Depositary for payment to the
holders of the shares of the Series B Preferred Stock then to be
redeemed. If such deposit is made and the funds so deposited are made
immediately available to the holders of the shares of the Series B
Preferred Stock to be redeemed, the Corporation shall thereupon be
released and discharged (subject to the provisions of Section D.6) from
any obligation to make payment of the amount payable upon redemption of
the shares of the Series B Preferred Stock to be redeemed, and the
holders of such shares shall look only to the Depositary for such
payment.
6. Any funds remaining unclaimed at the end of two years
from and after the redemption date in respect of which such funds were
deposited shall be returned to the Corporation forthwith and thereafter
the holders of shares of the Series B Preferred Stock called for
redemption with respect to which such funds were deposited shall look
only to the Corporation for the payment of the redemption price
thereof. Any interest accrued on any funds deposited with the
Depositary shall belong to the Corporation and shall be paid to it from
time to time on demand.
7. Any shares of the Series B Preferred Stock which
shall at any time have been redeemed 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 by the Board of Directors.
8. To the extent required to have the Series B Preferred
Stock treated as Tier 1 capital for bank regulatory purposes or
otherwise required by applicable regulations of the Federal Reserve
Board, the shares of Series B Preferred Stock may not be redeemed by
the Corporation without the prior consent of the Federal Reserve Board.
E. LIQUIDATION PREFERENCE
1. Upon any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the then record holders
of shares of Series B Preferred Stock will be entitled to receive out
of the assets of the Corporation available for distribution to
shareholders, before any
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distribution is made to holders of common stock or any other equity
securities of the Corporation ranking junior upon liquidation to the
Series B Preferred Stock, distributions upon liquidation in the amount
of $25 per share plus an amount equal to any accrued and unpaid
dividends (without any cumulation for unpaid dividends for prior
dividend periods on the Series B Preferred Stock) for the current
monthly dividend period to the date of payment. Such amount shall be
paid to the holders of the Series B Preferred Stock prior to any
payment or distribution to the holders of the common stock of the
Corporation or of any other class of stock or series thereof of the
Corporation ranking junior to the Series B Preferred Stock in respect
of dividends or as to the distribution of assets upon liquidation.
2. If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series B Preferred Stock and any other shares of stock
of the Corporation ranking as to any such distribution on a parity with
the Series B Preferred Stock are not paid in full, the holders of the
Series B Preferred Stock and of such other shares will share ratably in
any such distribution of assets of the Corporation in proportion to the
full liquidation preferences to which each is entitled. After payment
of the full amount of the liquidation preference to which they would
otherwise be entitled, the holders of shares of Series B Preferred
Stock will not be entitled to any further participation in any
distribution of assets of the Corporation.
3. Neither the consolidation or merger of the
Corporation with any other corporation, nor any sale, lease or
conveyance of all or any part of the property or business of the
Corporation, shall be deemed to be a liquidation, dissolution, or
winding up of the Corporation.
F. VOTING RIGHTS
1. Except as described in this Section F, or except as
required by applicable law, holders of the Series B Preferred Stock
will not be entitled to receive notice of or attend or vote at any
meeting of stockholders of the Corporation.
2. If the Corporation does not pay dividends in full on
the Series B Preferred Stock for eighteen consecutive monthly dividend
periods, the holders of outstanding shares of the Series B Preferred
Stock, together with the holders of any other shares of stock of the
Corporation having the right to vote for the election of directors
solely in the event of any failure to pay dividends, acting as a single
class without regard to series, will be entitled, by written notice to
the Corporation given by the holders of a majority in liquidation
preference of such shares or by ordinary resolution passed by the
holders of a majority in liquidation preference of such shares present
in person or by proxy at a separate general meeting of such holders
convened for the purpose, to appoint two additional members of the
Board of Directors of the Corporation, to remove any such member from
office and to appoint another person in place of such member. Not later
than 30 days after such entitlement arises, if written notice by a
majority of the holders of such shares has not been given as provided
for in the preceding sentence, the Board of Directors or an authorized
committee thereof will convene a separate general meeting for the above
purpose. If the Board of Directors or such authorized committee fails
to convene such meeting within such 30-day period, the holders of 10%
of the outstanding shares of the Series B Preferred Stock and any such
other stock will be entitled to convene such meeting. The provisions of
the Certificate of Incorporation and By-laws of the Corporation
relating to the convening and conduct of general meetings of
stockholders will apply with respect to any such separate general
meeting. Any member of the Board of Directors so appointed shall vacate
office if, following the event which gave rise to such appointment, the
Corporation shall have resumed the payment of dividends in full on the
Series B Preferred Stock and each such other series of stock for twelve
consecutive monthly dividend periods.
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3. Any amendment, alteration or repeal of the rights,
preferences and privileges of the Series B Preferred Stock by way of
amendment of the Corporation's Restated Certificate of Incorporation
whether by merger or otherwise (including, without limitation, the
authorization or issuance of any shares of the Corporation ranking, as
to dividend rights or rights on liquidation, winding up and
dissolution, senior to the Series B Preferred Stock) which would
materially and adversely affect the powers, preferences or special
rights of the Series B Preferred Stock shall not be effective (unless
otherwise required by applicable law) except with the consent in
writing of the holders of at least two thirds of the outstanding
aggregate liquidation preference of the outstanding shares of the
Series B Preferred Stock or with the sanction of a special resolution
passed at a separate general meeting by the holders of at least two
thirds of the aggregate liquidation preference of the outstanding
shares of the Series B Preferred Stock. Notwithstanding the foregoing,
the Corporation may, without the consent or sanction of the holders of
the Series B Preferred Stock, authorize and issue shares of the
Corporation ranking, as to dividend rights and rights on liquidation,
winding up and dissolution, on a parity with or junior to the Series B
Preferred Stock.
The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of the
Series B Preferred Stock shall have been redeemed or called for
redemption upon proper notice and sufficient funds shall have been
deposited in trust to effect such redemption.
4. No vote of the holders of the Series B Preferred
Stock will be required for the Corporation to redeem or purchase and
cancel the Series B Preferred Stock in accordance with the Restated
Certificate of Incorporation of the Corporation.
5. The Corporation will cause a notice of any meeting at
which holders of any series of Preferred Stock are entitled to vote to
be mailed to each record holder of such series of Preferred Stock. Each
such notice will include a statement setting forth (i) the date of such
meeting, (ii) a description of any resolution to be proposed for
adoption at such meeting on which such holders are entitled to vote and
(iii) instructions for deliveries of proxies.
6. Except as set forth in this Section F, holders of
Series B Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled
to vote as set forth herein) for taking any corporate action.
G. RANK
The Series B Preferred Stock will, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank (i)
senior to all classes of common stock of the Corporation and to all
other equity securities issued by the Corporation the terms of which
specifically provide that such equity securities will rank junior to
the Series B Preferred Stock (or to a number of series of Preferred
Stock which includes the Series B Preferred Stock); (ii) on a parity
with the Corporation's outstanding 7% Noncumulative Monthly Income
Preferred Stock, Series A and with all other equity securities issued
by the Corporation the terms of which specifically provide that such
equity securities will rank on a parity with the Series B Preferred
Stock (or with a number of series of Preferred Stock which includes the
Series B Preferred Stock); and (iii) subject to the provisions of F.3
hereof, junior to all equity securities issued by the Corporation the
terms of which specifically provide that such equity securities will
rank senior to the Series B Preferred Stock (or to a number of series
of Preferred Stock which includes the Series B Preferred Stock). For
this purpose, the term "equity securities" does not include debt
securities convertible into or exchangeable for equity securities.
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H. FORM OF CERTIFICATE FOR SERIES B PREFERRED STOCK; TRANSFER AND
REGISTRATION
1. The Series B Preferred Stock shall be issued in
registered form only. The Corporation may treat the record holder of a
share of Series B Preferred Stock, including the Depository Trust
Company and its nominee and any other holder that holds such share on
behalf of any other person, as such record holder appears on the books
of the registrar for the Series B Preferred Stock, as the sole owner of
such share for all purposes.
2. The transfer of a share of Series B Preferred Stock
may be registered upon the surrender of the certificate evidencing the
share of Series B Preferred Stock to be transferred, together with the
form of transfer endorsed on it duly completed and executed, at the
office of the transfer agent and registrar.
3. Registration of transfers of shares of Series B
Preferred Stock will be effected without charge by or on behalf of the
Corporation, but upon payment (or the giving of such indemnity as the
transfer agent and registrar may require) in respect of any tax or
other governmental charges which may be imposed in relation to it.
4. The Corporation will not be required to register the
transfer of a share of Series B Preferred Stock after such share has
been called for redemption.
I. REPLACEMENT OF LOST CERTIFICATES
If any certificate for a share of Series B Preferred Stock is
mutilated or alleged to have been lost, stolen or destroyed, a new
certificate representing the same share shall be issued to the holder
upon request subject to delivery of the old certificate or, if alleged
to have been lost, stolen or destroyed, compliance with such conditions
as to evidence, indemnity and the payment of out-of-pocket expenses of
the Corporation in connection with the request as the Board of
Directors of the Corporation may determine.
J. NO PREEMPTIVE RIGHTS
Holders of the Series B Preferred Stock will have no
preemptive or preferential rights to purchase any securities of the
Corporation.
K. NO REPURCHASE AT THE OPTION OF HOLDERS; MISCELLANEOUS
Holders of Series B Preferred Stock will have no right to
require the Corporation to redeem or repurchase any shares of Series B
Preferred Stock, and the shares of Series B Preferred Stock are not
subject to any sinking fund or similar obligation. The Corporation may,
at its option, purchase shares of the Series B Preferred Stock from
holders thereof from time to time, by tender, in privately negotiated
transactions or otherwise.
The undersigned hereby certify that the capital of the Corporation will
not be reduced under or by reason of the adoption of the above resolutions
providing for the creation of the above described series of Preferred Stock.
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IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by its President and its
Assistant Secretary, this 29th day of August, 2000.
DORAL FINANCIAL CORPORATION
By:/s/ Zoila Levis
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Zoila Levis
President
[CORPORATE SEAL]
By:/s/ Fernando Rivera Munich
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Fernando Rivera Munich
Assistant Secretary
