Exhibit 3.2
EXECUTION VERSION
ARTICLES OF AMENDMENT
TO THE RESTATED CHARTER
OF FIRST HORIZON NATIONAL CORPORATION
(Rollover Preferred Stock Designation)
The undersigned, being a duly
authorized officer of First Horizon National Corporation (the “Corporation”), acting pursuant to Sections 48-20-102
and 48-20-106 of the Tennessee Business Corporation Act, hereby certifies as follows:
| 1. | The name of the Corporation is FIRST HORIZON NATIONAL CORPORATION. |
| 2. | The Restated Charter is hereby amended by adding the following text to Article 10 to set forth the terms of the Corporation’s
Series B Non-Cumulative Perpetual Preferred Stock, Series C Non-Cumulative Perpetual Preferred Stock and Series D Non-Cumulative
Perpetual Preferred Stock, by adding new sections (c), (d) and (e) to such Article 10: |
(c) 6.625%
Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series B. Pursuant to the provisions of the Restated Charter of
the Corporation and applicable law, a series of preferred stock, no par value, of the Corporation be and hereby is created and
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:
(1) Designation
and Number of Shares
The designation
of the series of preferred stock shall be “6.625% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series B”
(the “Series B Preferred Stock”). With respect to payment of dividends and distributions upon the Corporation’s
liquidation, dissolution or winding up, the Series B Preferred Stock shall rank (i) senior to the Corporation’s common stock
and any other class or series of preferred stock that by its terms ranks junior to the Series B Preferred Stock, (ii) equally with
all existing and future series of preferred stock that the Corporation may issue that does not by its terms rank junior to the
Series B Preferred Stock, including the Series A Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and
the Series E Preferred Stock and (iii) junior to all existing and future indebtedness and other liabilities of the Corporation
any class or series of preferred stock that expressly provides in the articles of amendment creating such preferred stock that
it ranks senior to the Series B Preferred Stock (subject to any requisite consents required for the creation of such preferred
stock ranking senior to the Series B Preferred Stock).The number of authorized shares of Series B Preferred Stock shall be 8,625.
That number from time to time may be increased (but not in excess of the total number of authorized shares of preferred stock)
or decreased (but not below the number of shares of Series B Preferred Stock then outstanding) by further resolution duly adopted
by the Board of Directors (or a duly authorized committee thereof) and by the filing of a certificate pursuant to the provisions
of Section 48-20-106 of the Tennessee Business Corporation Act stating that such increase or decrease, as the case may be, has
been so authorized. The Corporation may from time to time, without notice to or the consent of holders of the Series B Preferred
Stock, issue additional shares of Series B Preferred Stock, provided that if the additional shares are not fungible for U.S. federal
income tax purposes with the initial shares of such series, the additional shares shall be issued under a separate CUSIP number.
The additional shares would form a single series together with all previously issued shares of Series B Preferred Stock.
(2) Standard
Provisions
The Standard Provisions contained in
Annex C attached hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of this Article
10(c) to the same extent as if such provisions had been set forth in full herein.
(3) Definitions
The following terms are used in this
Article 10(c) (including the Standard Provisions in Annex C hereto) as defined below:
“Board of Directors”
means the Board of Directors of the Corporation or any duly authorized committee thereof.
“Restated Charter”
means the Restated Charter of the Corporation, as may be amended from time to time.
“Series A Preferred Stock”
means the Non-Cumulative Perpetual Preferred Stock, Series A, of the Corporation.
“Series C Preferred Stock”
means the 6.60% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series C, of the Corporation.
“Series D Preferred Stock”
means the 6.100% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series D, of the Corporation.
“Series E Preferred Stock”
means the Non-Cumulative Perpetual Preferred Stock, Series E, of the Corporation.
(d) 6.60%
Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series C. Pursuant to the provisions of the Restated Charter of
the Corporation and applicable law, a series of preferred stock, no par value, of the Corporation be and hereby is created and
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:
(1) Designation
and Number of Shares.
The designation
of the series of preferred stock shall be “6.60% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series C”
(the “Series C Preferred Stock”). With respect to payment of dividends and distributions upon the Corporation’s
liquidation, dissolution or winding up, the Series C Preferred Stock shall rank (i) senior to the Corporation’s common stock
and any other class or series of preferred stock that by its terms ranks junior to the Series C Preferred Stock, (ii) equally with
all existing and future series of preferred stock that does not by its terms so provide, including the Series A Preferred Stock,
the Series B Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock and (iii) junior to all existing and
future indebtedness and other liabilities of the Corporation any class or series of preferred stock that expressly provides in
the articles of amendment creating such preferred stock that it ranks senior to the Series C Preferred Stock (subject to any requisite
consents prior to issuance).The number of authorized shares of Series C Preferred Stock shall be 5,750. That number from time to
time may be increased (but not in excess of the total number of authorized shares of preferred stock) or decreased (but not below
the number of shares of Series C Preferred Stock then outstanding) by further resolution duly adopted by the Board of Directors
(or a duly authorized committee thereof) and by the filing of a certificate pursuant to the provisions of Section 48-20-106 of
the Tennessee Business Corporation Act stating that such increase or decrease, as the case may be, has been so authorized. The
Corporation may from time to time, without notice to or the consent of holders of the Series C Preferred Stock, issue additional
shares of Series C Preferred Stock, provided that if the additional shares are not fungible for U.S. federal income tax purposes
with the initial shares of such series, the additional shares shall be issued under a separate CUSIP number. The additional shares
would form a single series together with all previously issued shares of Series C Preferred Stock.
(2) Standard
Provisions
The Standard Provisions contained in
Annex D attached hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of this Article
10(d) to the same extent as if such provisions had been set forth in full herein.
(3) Definitions
The following terms are used in this
Article 10(d) (including the Standard Provisions in Annex D hereto) as defined below:
“Board of Directors”
means the Board of Directors of the Corporation or any duly authorized committee thereof.
“Restated Charter”
means the Restated Charter of the Corporation, as may be amended from time to time.
“Series A Preferred Stock”
means the Non-Cumulative Perpetual Preferred Stock, Series A, of the Corporation.
“Series B Preferred Stock”
means the 6.625% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series B, of the Corporation.
“Series D Preferred Stock”
means the 6.100% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series D, of the Corporation.
“Series E Preferred Stock”
means the Non-Cumulative Perpetual Preferred Stock, Series E, of the Corporation.
(e) 6.100%
Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series D. Pursuant to the provisions of the Restated Charter of
the Corporation and applicable law, a series of preferred stock, no par value , of the Corporation be and hereby is created and
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:
(1) Designation
and Number of Shares
The designation
of the series of preferred stock shall be “6.100% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series D”
(the “Series D Preferred Stock”). With respect to payment of dividends and distributions upon the Corporation’s
liquidation, dissolution or winding up, the Series D Preferred Stock shall rank (i) senior to the Corporation’s common stock
and any other class or series of capital stock that by its terms ranks junior to the Series D Preferred Stock, (ii) equally with
all existing and future series of capital stock that does not by its terms so provide, including the Series A Preferred Stock,
the Series B Preferred Stock, the Series C Preferred Stock and the Series E Preferred Stock and (iii) junior to all existing and
future indebtedness and other liabilities of the Corporation any class or series of capital stock that expressly provides in the
articles of amendment creating such preferred stock that it ranks senior to the Series D Preferred Stock (subject to any requisite
consents prior to issuance). The number of authorized shares of Series D Preferred Stock shall be 10,000. That number from time
to time may be increased (but not in excess of the total number of authorized shares of preferred stock) or decreased (but not
below the number of shares of Series D Preferred Stock then outstanding) by further resolution duly adopted by the Board of Directors
(or a duly authorized committee thereof) and by the filing of a certificate pursuant to the provisions of Section 48-20-106 of
the Tennessee Business Corporation Act stating that such increase or decrease, as the case may be, has been so authorized. The
Corporation may from time to time, without notice to or the consent of holders of the Series D Preferred Stock, issue additional
shares of Series D Preferred Stock, provided that if the additional shares are not fungible for U.S. federal income tax purposes
with the initial shares of such series,
the additional shares shall be
issued under a separate CUSIP number. The additional shares would form a single series together with all previously issued
shares of Series D Preferred Stock.
(2)
Standard Provisions
The Standard Provisions contained in
Annex E attached hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of this Article
10(e) to the same extent as if such provisions had been set forth in full herein.
(3) Definitions
The following terms are used in this
Article 10(e) (including the Standard Provisions in Annex E hereto) as defined below:
“Board of Directors”
means the Board of Directors of the Corporation or any duly authorized committee thereof.
“Restated Charter”
means the Restated Charter of the Corporation, as may be amended from time to time.
“Series A Preferred Stock”
means the Non-Cumulative Perpetual Preferred Stock, Series A, of the Corporation.
“Series B Preferred Stock”
means the 6.625% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series B, of the Corporation.
“Series C Preferred Stock”
means the 6.60% Fixed-to-Floating Non-Cumulative Perpetual Preferred Stock, Series C, of the Corporation.
“Series E Preferred Stock”
means the Non-Cumulative Perpetual Preferred Stock, Series E, of the Corporation.
| 3. | The foregoing amendment to the Restated Charter was authorized by the Board of Directors (at a meeting duly convened and held
on November 3, 2019) without shareholder action, as such was not required. |
| 4. | The foregoing amendments will be effective as of 11:58 p.m. Central Time on July 1, 2020. |
[Signature Page Follows]
Date: June 29, 2020
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FIRST HORIZON NATIONAL CORPORATION |
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By: |
/s/ Clyde A. Billings, Jr. |
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Name: |
Clyde A. Billings, Jr. |
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Title: |
Corporate Secretary |
ANNEX C
STANDARD PROVISIONS SERIES B
Section
1. Definitions.
As used herein
with respect to Series B Preferred Stock:
(A) “Business
Day” shall mean (i) with respect to the Fixed Rate Period, any weekday in New York, New York that is not a day on which
banking institutions in such city are authorized or required by law, regulation, or executive order to be closed and (ii) with
respect to the Floating Rate Period, any weekday in New York, New York that is not a day on which banking institutions in such
city are authorized or required by law, regulation, or executive order to be closed, and additionally, is a London Banking Day.
(B) “Dividend
Determination Date” shall have the meaning set forth in Section (2)(G) hereof.
(C) “Dividend
Payment Dates” shall have the meaning set forth in Section (2)(B) hereof.
(D) “Dividend
Period” shall mean the period from, and including, each Dividend Payment Date to, but excluding, the next succeeding
Dividend Payment Date, except for the initial Dividend Period, which shall be the period from, and including, February 1, 2020
to, but excluding, the next succeeding Dividend Payment Date.
(E) “Fixed
Period Dividend Payment Date” shall have the meaning set forth in Section (2)(B) hereof.
(F) “Floating
Period Dividend Payment Date” shall have the meaning set forth in Section (2)(B) hereof.
(G) “Fixed
Rate Period” shall have the meaning set forth in Section (2)(A) hereof.
(H) “Floating
Rate Period” shall have the meaning set forth in Section (2)(A) hereof.
(I) “Junior
Stock” shall mean the Corporation’s common stock and any other class or series of the Corporation’s capital
stock over which the Series B Preferred Stock has preference or priority in the payment of dividends or in the distribution of
assets on the liquidation, dissolution or winding up of the Corporation.
(J) “Liquidation
Preference” shall mean $10,000 per share of Series B Preferred Stock.
(K) “London
Banking Day” shall mean any day on which commercial banks are open dealings in deposits in U.S. dollars in the London
interbank market.
(L) “Nonpayment”
shall have the meaning set forth in Section (5)(B) hereof.
(M) “Optional
Redemption” shall have the meaning set forth in Section (4)(A) hereof.
(N) “Parity
Stock” shall mean any class or series of the Corporation’s capital stock that ranks on a par with the Series B
Preferred Stock in the payment of dividends and in the distribution of assets on the liquidation, dissolution or winding up of
the Corporation, which shall include the Series A Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and
the Series E Preferred Stock
and any class or series of the Corporation’s stock hereafter authorized that ranks on a par
with the Series B Preferred Stock in the payment of dividends and in the distribution of assets on any liquidation, dissolution
or winding up of the Corporation.
(O) “Preferred
Stock Directors” shall have the meaning set forth in Section (5)(B) hereof.
(P) “Regulatory
Capital Treatment Event” shall mean a good faith determination by the Corporation that, as a result of any (i) amendment
to, clarification of, or change (including any announced prospective change) in, the laws or regulations of the United States or
any political subdivision of or in the United States that is enacted or becomes effective after the initial issuance of the Series
B Preferred Stock; (ii) proposed change in those laws or regulations that is announced or becomes effective after the initial issuance
of the Series B Preferred Stock; or (iii) official administrative decision or judicial decision or administrative action or other
official pronouncement interpreting or applying those laws or regulations that is announced or becomes effective after the initial
issuance of the Series B Preferred Stock, there is more than an insubstantial risk that the Corporation shall not be entitled to
treat the full liquidation value of the Series B Preferred Stock then outstanding as “Tier 1 Capital” (or its equivalent)
for purposes of the capital adequacy laws or regulations of the Board of Governors of the Federal Reserve System (or, as and if
applicable, the capital adequacy laws or regulations of any successor appropriate federal banking agency), as then in effect and
applicable, for as long as any share of Series B Preferred Stock is outstanding.
(Q) “Regulatory
Event Redemption” shall have the meaning set forth in Section (4)(B) hereof.
(R) “Spread”
shall have the meaning set forth in Section (2)(A) hereof.
(S) “Three-month
LIBOR” shall mean the London interbank offered rate for deposits in U.S. dollars for a three month period, as that rate
appears on Reuters screen page “LIBOR01” (or any successor or replacement page) at approximately 11:00 a.m., London
time, on the relevant Dividend Determination Date. If no offered rate appears on Reuters screen page “LIBOR01” (or
any successor or replacement page) on the relevant Dividend Determination Date at approximately 11:00 a.m., London time, then the
calculation agent, in consultation with the Corporation, shall select four major banks in the London interbank market and shall
request each of their principal London offices to provide a quotation of the rate at which three-month deposits in U.S. dollars
in amounts of at least $1,000,000 are offered by it to prime banks in the London interbank market, on that date and at that time.
If at least two quotations are provided, Three-month LIBOR shall be the arithmetic average (rounded upward if necessary to the
nearest .00001 of 1%) of the quotations provided. Otherwise, the Calculation Agent in consultation with the Corporation shall select
three major banks in New York City and shall request each of them to provide a quotation of the rate offered by it at approximately
11:00 a.m., New York City time, on the Dividend Determination Date for loans in U.S. dollars to leading European banks for a three
month period for the applicable Dividend Period in an amount of at least $1,000,000. If three quotations are provided, Three-month
LIBOR shall be the arithmetic average of the quotations provided. Otherwise, Three-month LIBOR for the next Dividend Period shall
be equal to Three-month LIBOR in effect for the then-current Dividend Period or, in the case of the first Dividend Period in the
Floating Rate Period, the most recent rate on which Three-month LIBOR could have been determined in accordance with the first sentence
of this Section had the dividend rate been a floating rate during the Fixed Rate Period.
(T) “Voting
Parity Stock” shall have the meaning set forth in Section (5)(B) hereof.
Section 2. Dividends.
(A) Holders
of the Series B Preferred Stock shall be entitled to receive, only when, as, and if declared by the Corporation’s Board of
Directors (or a duly authorized committee thereof), out of assets legally available under applicable law for payment, non-cumulative
cash dividends based on the Liquidation
Preference, and no more, at a rate equal to (1) 6.625% per annum, for each semi-annual
Dividend Period occurring from, and including, February 1, 2020 to, but excluding, August 1, 2025 (the “Fixed Rate Period”),
and (2) thereafter, Three-month LIBOR plus a spread of 426.2 basis points per annum (the “Spread”), for each
quarterly Dividend Period beginning August 1, 2025 (the “Floating Rate Period”).
(B) When,
as, and if declared by the Corporation’s Board of Directors (or a duly authorized committee thereof) (1) during the Fixed
Rate Period, the Corporation shall pay cash dividends on the Series B Preferred Stock semi-annually, in arrears, on February 1
and August 1 of each year (each such date, a “Fixed Period Dividend Payment Date”), beginning on August 1, 2020,
and, when, as and if declared by the Corporation’s Board of Directors (or a duly authorized committee thereof) and (2) during
the Floating Rate Period, the Corporation shall pay cash dividends on the Series B Preferred Stock quarterly, in arrears, on February
1, May 1, August 1, and November 1 of each year, beginning on November 1, 2025 (each such date, a “Floating Period Dividend
Payment Date,” and together with the Fixed Period Dividend Payment Dates, the “Dividend Payment Dates”).
The Corporation shall pay cash dividends to the holders of record of shares of the Series B Preferred Stock as such holders appear
on the Corporation’s stock register on the applicable record date, which shall be the fifteenth calendar day before that
Dividend Payment Date or such other record date fixed by our Board of Directors (or a duly authorized committee thereof) that is
not more than 60 nor less than 10 days prior to such Dividend Payment Date.
(C) If
any Dividend Payment Date on or prior to August 1, 2025 is a day that is not a Business Day, then the dividend with respect to
that Dividend Payment Date shall instead be paid on the immediately succeeding Business Day, without interest or other payment
in respect of such delayed payment. If any Dividend Payment Date after August 1, 2025 is a day that is not a Business Day, then
the Dividend Payment Date shall be the immediately succeeding Business Day unless such day falls in the next calendar month, in
which case the Dividend Payment Date shall instead be the immediately preceding day that is a Business Day, and dividends will
accumulate to the Dividend Payment Date as so adjusted.
(D) The
Corporation shall calculate dividends on the Series B Preferred Stock for the Fixed Rate Period on the basis of a 360-day year
of twelve 30-day months. The Corporation shall calculate dividends on the Series B Preferred Stock for the Floating Rate Period
on the basis of the actual number of days in a Dividend Period and a 360-day year. Dollar amounts resulting from such calculation
shall be rounded to the nearest cent, with one-half cent being rounded upward.
(E) Dividends
on the Series B Preferred Stock shall not be cumulative or mandatory. If the Corporation’s Board of Directors (or a duly
authorized committee thereof) does not declare a dividend on the Series B Preferred Stock for any Dividend Period prior to the
related Dividend Payment Date, that dividend shall not accumulate, and the Corporation shall have no obligation to pay a dividend
for that Dividend Period at any time, whether or not dividends on the Series B Preferred Stock or any other series of our preferred
stock or common stock are declared for any future Dividend Period.
(F) Dividends
on the Series B Preferred Stock shall accumulate from February 1, 2020 at the then-applicable dividend rate on the liquidation
preference amount of $10,000 per share. If the Corporation issues additional shares of the Series B Preferred Stock, dividends
on those additional shares shall accumulate from the original issue date of those additional shares at the then-applicable dividend
rate.
(G) The
dividend rate for each Dividend Period in the Floating Rate Period shall be determined by the Calculation Agent using Three-month
LIBOR as in effect on the second London Banking Day prior to the beginning
of the Dividend Period, which date shall be the “Dividend Determination Date” for the relevant Dividend Period.
The Calculation Agent then shall add Three-month LIBOR as determined on the Dividend Determination Date and the applicable Spread.
Once the dividend rate for the Series B Preferred Stock is determined, the Calculation Agent shall deliver that information to
the Corporation and the Transfer Agent. Absent manifest error, the Calculation Agent’s determination of the dividend rate
for a Dividend Period for the Series B Preferred Stock shall be final.
(H) So
long as any share of Series B Preferred Stock remains outstanding:
(i) no
dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment
on any Junior Stock (other than a dividend payable solely in shares of Junior Stock or any dividend in connection with the implementation
of a stockholder rights plan or the redemption or repurchase of any rights under such a plan);
(ii) no
shares of Junior Stock shall be repurchased, redeemed, or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior Stock, or the exchange for or
conversion into Junior Stock, through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior
Stock or pursuant to a contractually binding requirement to buy Junior Stock pursuant to a binding stock repurchase plan existing
prior to the most recently completed Dividend Period), nor shall any monies be paid to or made available for a sinking fund for
the redemption of any such securities by the Corporation; and
(iii) no
shares of Parity Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation (other than pursuant
to pro rata offers to purchase all, or a pro rata portion, of the Series B Preferred Stock and such Parity Stock, through the use
of the proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, as a result of a reclassification
of Parity Stock for or into other Parity Stock, or by conversion into or exchange for Junior Stock), during a Dividend Period,
unless, in each case, the full dividends for the most recently completed Dividend Period on all outstanding shares of the Series
B Preferred Stock have been declared and paid in full or declared and a sum sufficient for the payment of those dividends has been
set aside. The foregoing limitations shall not apply to purchases or acquisitions of the Corporation’s Junior Stock pursuant
to any employee or director incentive or benefit plan or arrangement (including any of the Corporation’s employment, severance,
or consulting agreements) of the Corporation or of any of the Corporation’s subsidiaries heretofore or hereafter adopted.
(I) Except
as provided below, for so long as any share of Series B Preferred Stock remains outstanding, the Corporation shall not declare,
pay, or set aside for payment full dividends on any Parity Stock unless the Corporation has paid in full, or set aside payment
in full, in respect of all accumulated dividends for all Dividend Periods for outstanding shares of Series B Preferred Stock. To
the extent that the Corporation declares dividends on the Series B Preferred Stock and on any Parity Stock but cannot make full
payment of such declared dividends, the Corporation shall allocate the dividend payments on a pro rata basis among the holders
of the shares of Series B Preferred Stock and the holders of any Parity Stock then outstanding. For purposes of calculating the
pro rata allocation of partial dividend payments, the Corporation shall allocate dividend payments based on the ratio between the
then current and accumulated dividend payments due on the shares of Series B Preferred Stock and (1) in the case of cumulative
Parity Stock the aggregate of the accumulated and unpaid dividends due on any such Parity Stock and (2) in the case of non-cumulative
Parity Stock the aggregate of the declared but unpaid dividends due on any such Parity Stock. No interest shall be payable in respect
of any dividend payment on Series B Preferred Stock that may be in arrears.
(J) Subject
to the foregoing conditions, and not otherwise, dividends (payable in cash, stock, or otherwise), as may be determined by
the Corporation’s Board of Directors (or a duly authorized committee thereof), may be declared and paid on the
Corporation’s common stock and any Junior Stock from time to time out of any funds legally available for such payment,
and the holders of the Series B Preferred Stock shall not be entitled to participate in such dividends.
Section 3. Liquidation
Rights.
(A) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of the shares
of Series B Preferred Stock then outstanding shall be entitled to be
paid out of the Corporation’s assets legally available
for distribution to the Corporation’s stockholders, before any distribution of assets is made to holders of common stock
or any other Junior Stock, a liquidating distribution in the amount equal to the sum of (1) the Liquidation Preference, plus (2)
the sum of any declared and unpaid dividends for prior Dividend Periods prior to the Dividend Period in which the liquidation distribution
is made and any declared and unpaid dividends for the then current Dividend Period in which the liquidation distribution is made
to the date of such liquidation distribution. After payment of the full amount of the liquidating distributions to which they are
entitled pursuant to the foregoing, the holders of Series B Preferred Stock shall have no right or claim to any remaining assets
of the Corporation.
(B) In
the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series B Preferred Stock and the
corresponding amounts payable on all shares of Parity Stock in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation, then the holders of the Series B Preferred Stock and such Parity Stock shall share ratably in any
such distribution of assets in proportion to the full liquidating distributions to which they respectively would be entitled.
(C) For
the purposes of this Section (3), the merger or consolidation of the Corporation with or into any other entity or by another entity
with or into the Corporation or the sale, lease, exchange or other transfer of all or substantially all of the assets of the Corporation
(for cash, securities or other consideration) shall not be deemed to constitute the liquidation, dissolution or winding up of the
Corporation. If the Corporation enters into any merger or consolidation transaction with or into any other entity and the Corporation
is not the surviving entity in such transaction, the Series B Preferred Stock may be converted into shares of the surviving or
successor corporation or the direct or indirect parent of the surviving or successor corporation having terms identical to the
terms of the Series B Preferred Stock set forth herein.
Section 4. Redemption
Rights.
(A) Subject
to the further terms and conditions provided herein, the Corporation may redeem the Series B Preferred Stock, in whole or in part,
at its option, for cash, on any Dividend Payment Date on or after August 1, 2025, with not less than 30 days’ and not more
than 60 days’ notice (“Optional Redemption”), subject to the approval of the appropriate federal banking
agency, at the redemption price provided in Section (4)(C) below. Dividends shall not accumulate on those shares of Series B Preferred
Stock so redeemed on and after the applicable redemption date.
(B) In
addition, the Corporation may, redeem the Series B Preferred Stock, in whole but not in part, at its option, for cash, at any time
within 90 days following a Regulatory Capital Treatment Event, subject to the approval of the appropriate federal banking agency,
at the redemption price provided in Section (4)(C) below (a “Regulatory Event Redemption”).
(C) The
redemption price for any redemption of Series B Preferred Stock, whether an Optional Redemption or Regulatory Event Redemption,
shall be equal to (i) $10,000 per share of Series B Preferred Stock, plus any declared and unpaid dividends (without regard to
any undeclared dividends) to, but excluding, the date of redemption.
(D) Any
notice given as provided in this Section (4) shall be conclusively presumed to have been duly given, whether or not the holder
receives the notice, and any defect in the notice or in the provision of the notice, to any holder of shares of Series B Preferred
Stock designated for redemption will not affect the redemption of any other shares of Series B Preferred Stock. Any notice provided
to a holder of Series B Preferred Stock shall be deemed given on the date provided, whether or not the holder actually receives
the notice. A notice of redemption shall be given not less than 30 days and not more than 60 days prior to the date of redemption
specified in the notice, and shall specify (i) the redemption date, (ii) the redemption price, (iii) if fewer than all shares of
Series B Preferred Stock are to be redeemed, the number of shares of Series B Preferred Stock to be redeemed and (iv) the manner
in which holders of Series B Preferred Stock called for
redemption may obtain payment of the redemption price in respect of those
shares. Notwithstanding anything to the contrary in this paragraph, if the Series B Preferred Stock is issued in book-entry form
through The Depositary Trust Company or any other similar facility, notice of redemption may be given to the holders of Series
B Preferred Stock at such time and in any manner permitted by such facility.
(E) If
notice of redemption of any shares of Series B Preferred Stock has been given by the Corporation and if the funds necessary for
such redemption have been set aside by the Corporation in trust for the benefit of the holders of any shares of Series B Preferred
Stock, then from and after the Redemption Date such shares of Series B Preferred Stock shall no longer be outstanding for any purpose,
all dividends with respect to such shares of Series B Preferred Stock shall cease to accumulate from the Redemption Date and all
rights of the holders of such shares shall terminate, except the right to receive the Redemption Price, without interest. Series
B Preferred Stock redeemed pursuant to this Section (4) or purchased or otherwise acquired for value by the Corporation shall,
after such acquisition, have the status of authorized and unissued shares of preferred stock and may be reissued by the Corporation
at any time as shares of any series of preferred stock other than as Series B Preferred Stock.
(F) In
the event that fewer than all the outstanding shares of Series B Preferred Stock are to be redeemed, the shares of Series B Preferred
Stock to be redeemed shall be selected either pro rata or by lot or in such other manner as the Board of Directors of the Corporation
(or a duly authorized committee thereof), determines to be fair and equitable, subject to the provisions hereof. The Board of Directors
of the Corporation (or a duly authorized committee thereof) shall have the full power and authority to prescribe the terms and
conditions upon which such shares of Series B Preferred Stock may be redeemed from time to time.
(G) No
holder of Series B Preferred Stock shall have the right to require the redemption of the Series B Preferred Stock.
Section 5. Voting
Rights.
(A) Holders
of Series B Preferred Stock shall not have any voting rights, except as set forth below or as otherwise required by the Tennessee
Business Corporation Act.
(B) Whenever
dividends payable on the Series B Preferred Stock or any other class or series of preferred stock ranking equally with the
Series B Preferred Stock, including the Series A Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock
and the Series E Preferred Stock, as to payment of dividends, and upon which voting rights equivalent to those described in
this paragraph have been conferred and are exercisable, have not been declared and paid in an aggregate amount equal to, as
to any class or series, the equivalent of at least three or more semi-annual or six or more quarterly Dividend Periods, as
applicable, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of outstanding
shares of the Series B Preferred Stock voting as a class with holders of shares of any other series of our preferred stock
ranking equally with the Series B Preferred Stock, including the Series A Preferred Stock, the Series C Preferred Stock, the
Series D Preferred Stock and the Series E Preferred Stock, as to payment of dividends, and upon which like voting rights have
been conferred and are exercisable (“Voting Parity Stock”), shall be entitled to vote for the election of
two additional directors of the Board of Directors of the Corporation on the terms set forth in this Section (5) (and to fill
any vacancies in the terms of such directorships) (the “Preferred Stock Directors”). Holders of all series
of our Voting Parity Stock shall vote as a single class. In the event that the holders of the shares of the Series B
Preferred Stock are entitled to vote as described in this Section (5), the number of members of the Corporation’s Board
of Directors at that time shall be increased by two directors, and the holders of the Series B Preferred Stock shall have the
right, as members of that class, to elect two directors at a special meeting called at the request of the holders of record
of at least 20% of the aggregate voting power of the Series B Preferred Stock or any other series of Voting Parity Stock
(unless such request is received less than 90 days before the date fixed for the Corporation’s next annual or special
meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of the
stockholders), provided that the election of any Preferred Stock
Directors shall not cause the Corporation to violate the
corporate governance requirements of the New York Stock Exchange (or any other exchange on which the securities of the Corporation
may at such time be listed) that listed companies must have a majority of independent directors, and provided further that at no
time shall the Board of Directors of the Corporation include more than two Preferred Stock Directors.
(C) The
Preferred Stock Directors elected at any such special meeting shall hold office until the next annual meeting of the Corporation’s
stockholders unless they have been previously terminated or removed pursuant to Section (5)(D). In case any vacancy in the office
of a Preferred Stock Director occurs (other than prior to the initial election of the Preferred Stock Directors), the vacancy may
be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by the vote
of the holders of the Series B Preferred Stock (together with holders of any Voting Parity Stock) to serve until the next annual
meeting of the stockholders.
(D) When
the Corporation has paid full dividends on the Series B Preferred Stock for the equivalent of at least two semi-annual or four
quarterly Dividend Periods, as applicable, following a Nonpayment, then the right of the holders of Series B Preferred Stock to
elect the Preferred Stock Directors set forth in this Section (5) shall cease (except as provided by law and subject always to
the same provisions for the vesting of the special voting rights in the case of any future Nonpayment). Upon termination of the
right of the holders of the Series B Preferred Stock and Voting Parity Stock to vote for Preferred Stock Directors as set forth
in this Section (5), the term of office of all Preferred Stock Directors then in office elected by only those holders shall terminate
immediately. Whenever the term of office of the Preferred Stock Directors ends and the related voting rights have expired, the
number of directors automatically will be decreased to the number of directors as otherwise would prevail. Any Preferred Stock
Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of the Series
B Preferred Stock (together with holders of any Voting Parity Stock) when they have the voting rights described in Section (5)(B).
(E) So
long as any shares of Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of
holders of at least 66⅔% in voting power of the Series B Preferred Stock and any Voting Parity Stock, voting together as
a single class, given in person or by proxy, either in writing without a meeting or at any meeting called for the purpose, authorize,
create or issue any capital stock ranking senior to the Series B Preferred Stock as to dividends or the distribution of assets
upon liquidation, dissolution or winding up, or reclassify any authorized capital stock into any such shares of such capital stock
or issue any obligation or security convertible into or evidencing the right to purchase any such shares of capital stock. Further,
so long as any shares of the Series B Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote
of the holders of at least 66⅔% in voting power of the Series B Preferred Stock, amend, alter or repeal any provision of
these Articles of Amendment or the Restated Charter of the Corporation, including by merger, consolidation or otherwise, so as
to adversely affect the powers, preferences or special rights of the Series B Preferred Stock.
Notwithstanding
the foregoing, (i) any increase in the amount of authorized common stock or authorized preferred stock, or any increase or
decrease in the number of shares of any series of preferred stock, or the authorization, creation and issuance of other
classes or series of capital stock, in each case ranking on parity with or junior to the shares of the Series B Preferred
Stock as to dividends and distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to
adversely affect such powers, preferences or special rights and (ii) a merger or consolidation of the Corporation with or
into another entity in which the shares of the Series B Preferred Stock (A) remain outstanding or (B) are converted into or
exchanged for preference securities of the surviving entity or any entity, directly or indirectly, controlling such surviving
entity and such new preference securities have powers, preferences and special rights that are not materially less favorable
than the Series B Preferred Stock shall not be deemed to adversely affect the powers, preferences or special rights of the
Series B Preferred Stock.
(F) Notice
for a special meeting to elect the Preferred Stock Directors shall be given in a similar manner to that provided in the Corporation’s
By-laws for a special meeting of the stockholders. If the
secretary of the Corporation does not call a special meeting within 20
days after receipt of any such request, then any holder of Series B Preferred Stock may (at the Corporation’s expense) call
such meeting, upon notice as provided in this Section (5)(F), and for that purpose shall have access to the stock register of the
Corporation.
(G) Except
as otherwise set forth in Section (5)(F) hereof, the rules and procedures for calling and conducting any meeting of the holders
of Series B Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation
and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting
or such consents shall be governed by any rules that the Board of Directors of the Corporation (or a duly authorized committee
thereof), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Restated
Charter of the Corporation, the By-laws of the Corporation, and applicable laws and the rules of any national securities exchange
or other trading facility on which Series B Preferred Stock is listed or traded at the time.
Section 6. Conversion
Rights.
The holders of
Series B Preferred Stock shall not have any rights to convert such shares into shares of any other class or series of stock or
into any other securities of, or any interest or property in, the Corporation.
Section 7. No Sinking Fund.
No sinking fund
shall be established for the retirement or redemption of Series B Preferred Stock.
Section 8. No Preemptive or Subscription
Rights.
No holder of Series
B Preferred Stock of the Corporation shall, as such holder, have any preemptive right to purchase or subscribe for any additional
shares of stock of the Corporation or any other security of the Corporation that it may issue or sell.
Section 9. No Other Rights.
The Series B Preferred
Stock shall not have any designations, preferences or relative, participating, optional or other special rights except as set forth
herein or in the Restated Charter of the Corporation or as otherwise required by applicable law.
ANNEX D
STANDARD PROVISIONS SERIES C
Section
1. Definitions.
As used herein
with respect to Series C Preferred Stock:
(A) “Business
Day” shall mean (i) with respect to the Fixed Rate Period, any weekday in New York, New York that is not a day on which
banking institutions in such city are authorized or required by law, regulation, or executive order to be closed and (ii) with
respect to the Floating Rate Period, any weekday in New York, New York that is not a day on which banking institutions in such
city are authorized or required by law, regulation, or executive order to be closed, and additionally, is a London Banking Day.
(B) “Dividend
Determination Date” shall have the meaning set forth in Section (2)(G) hereof.
(C) “Dividend
Payment Dates” shall have the meaning set forth in Section (2)(B) hereof.
(D) “Dividend
Period” shall mean the period from, and including, each Dividend Payment Date to, but excluding, the next succeeding
Dividend Payment Date, except for the initial Dividend Period, which shall be the period from, and including, May 1, 2020 to, but
excluding, the next succeeding Dividend Payment Date.
(E) “Fixed
Rate Period” shall have the meaning set forth in Section (2)(A) hereof.
(F) “Floating
Rate Period” shall have the meaning set forth in Section (2)(A) hereof.
(G) “Junior
Stock” shall mean the Corporation’s common stock and any other class or series of the Corporation’s capital
stock over which the Series C Preferred Stock has preference or priority in the payment of dividends or in the distribution of
assets on the liquidation, dissolution or winding up of the Corporation.
(H) “Liquidation
Preference” shall mean $10,000 per share of Series C Preferred Stock.
(I) “London
Banking Day” shall mean any day on which commercial banks are open dealings in deposits in U.S. dollars in the London
interbank market.
(J) “Nonpayment”
shall have the meaning set forth in Section (5)(B) hereof.
(K) “Optional
Redemption” shall have the meaning set forth in Section (4)(A) hereof.
(L) “Parity
Stock” shall mean any class or series of the Corporation’s capital stock that ranks on a par with the Series
C Preferred Stock in the payment of dividends and in the distribution of assets on the liquidation, dissolution or winding up
of the Corporation, which shall include the Series A Preferred Stock, the Series B Preferred Stock, the Series D Preferred
Stock and the Series E Preferred Stock and any other class or series of the Corporation’s stock hereafter authorized
that ranks on a par with the Series C Preferred Stock in the payment of dividends and in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
(M) “Preferred
Stock Directors” shall have the meaning set forth in Section (5)(B) hereof.
(N) “Regulatory
Capital Treatment Event” shall mean a good faith determination by the Corporation that, as a result of any (i) amendment
to, clarification of, or change (including any announced prospective change) in, the laws or regulations of the United States or
any political subdivision of or in the United States that is enacted or becomes effective after the initial issuance of the Series
C Preferred Stock; (ii) proposed change in those laws or regulations that is announced or becomes effective after the initial issuance
of the Series C Preferred Stock; or (iii) official administrative decision or judicial decision or administrative action or other
official pronouncement interpreting or applying those laws or regulations that is announced or becomes effective after the initial
issuance of the Series C Preferred Stock, there is more than an insubstantial risk that the Corporation shall not be entitled to
treat the full liquidation value of the Series C Preferred Stock then outstanding as “Tier 1 Capital” (or its equivalent)
for purposes of the capital adequacy laws or regulations of the Board of Governors of the Federal Reserve System (or, as and if
applicable, the capital adequacy laws or regulations of any successor appropriate federal banking agency), as then in effect and
applicable, for as long as any share of Series C Preferred Stock is outstanding.
(O) “Regulatory
Event Redemption” shall have the meaning set forth in Section (4)(B) hereof.
(P) “Spread”
shall have the meaning set forth in Section (2)(A) hereof.
(Q) “Three-month
LIBOR” shall mean the London interbank offered rate for deposits in U.S. dollars for a three month period, as that rate
appears on Reuters screen page “LIBOR01” (or any successor or replacement page) at approximately 11:00 a.m., London
time, on the relevant Dividend Determination Date. If no offered rate appears on Reuters screen page “LIBOR01” (or
any successor or replacement page) on the relevant Dividend Determination Date at approximately 11:00 a.m., London time, then the
calculation agent, in consultation with the Corporation, shall select four major banks in the London interbank market and shall
request each of their principal London offices to provide a quotation of the rate at which three-month deposits in U.S. dollars
in amounts of at least $1,000,000 are offered by it to prime banks in the London interbank market, on that date and at that time.
If at least two quotations are provided, Three-month LIBOR shall be the arithmetic average (rounded upward if necessary to the
nearest .00001 of 1%) of the quotations provided. Otherwise, the Calculation Agent in consultation with the Corporation shall select
three major banks in New York City and shall request each of them to provide a quotation of the rate offered by it at approximately
11:00 a.m., New York City time, on the Dividend Determination Date for loans in U.S. dollars to leading European banks for a three
month period for the applicable Dividend Period in an amount of at least $1,000,000. If three quotations are provided, Three-month
LIBOR shall be the arithmetic average of the quotations provided. Otherwise, Three-month LIBOR for the next Dividend Period shall
be equal to Three-month LIBOR in effect for the then-current Dividend Period or, in the case of the first Dividend Period in the
Floating Rate Period, the most recent rate on which Three-month LIBOR could have been determined in accordance with the first sentence
of this Section had the dividend rate been a floating rate during the Fixed Rate Period.
(R) “Voting
Parity Stock” shall have the meaning set forth in Section (5)(B) hereof.
Section 2. Dividends.
(A) Holders
of the Series C Preferred Stock shall be entitled to receive, only when, as, and if declared by the Corporation’s
Board of Directors (or a duly authorized committee thereof), out of assets legally available under applicable law for
payment, non-cumulative cash dividends based on the Liquidation Preference, and no more, at a rate equal to (1) 6.60% per
annum, for each quarterly Dividend Period occurring from, and including, May 1, 2020 to, but excluding, May 1, 2026 (the
“Fixed Rate Period”), and (2) thereafter, Three-month LIBOR plus a spread of 492 basis points per annum
(the “Spread”), for each quarterly Dividend Period beginning May 1, 2026 (the “Floating Rate
Period”).
(B) When,
as, and if declared by the Corporation’s Board of Directors (or a duly authorized committee thereof), the Corporation shall
pay cash dividends on the Series C Preferred Stock quarterly, in arrears, on February 1, May 1, August 1, and November 1 of each
year (each such date, a “Dividend Payment
Date”), beginning on August 1, 2020, and, when, as and if declared
by the Corporation’s Board of Directors (or a duly authorized committee thereof). The Corporation shall pay cash dividends
to the holders of record of shares of the Series C Preferred Stock as such holders appear on the Corporation’s stock register
on the applicable record date, which shall be the fifteenth calendar day before that Dividend Payment Date or such other record
date fixed by our Board of Directors (or a duly authorized committee thereof) that is not more than 60 nor less than 10 days prior
to such Dividend Payment Date.
(C) If
any Dividend Payment Date on or prior to May 1, 2026 is a day that is not a Business Day, then the dividend with respect to that
Dividend Payment Date shall instead be paid on the immediately succeeding Business Day, without interest or other payment in respect
of such delayed payment. If any Dividend Payment Date after May 1, 2026 is a day that is not a Business Day, then the Dividend
Payment Date shall be the immediately succeeding Business Day unless such day falls in the next calendar month, in which case the
Dividend Payment Date shall instead be the immediately preceding day that is a Business Day, and dividends will accumulate to the
Dividend Payment Date as so adjusted.
(D) The
Corporation shall calculate dividends on the Series C Preferred Stock for the Fixed Rate Period on the basis of a 360-day year
of twelve 30-day months. The Corporation shall calculate dividends on the Series C Preferred Stock for the Floating Rate Period
on the basis of the actual number of days in a Dividend Period and a 360-day year. Dollar amounts resulting from such calculation
shall be rounded to the nearest cent, with one-half cent being rounded upward.
(E) Dividends
on the Series C Preferred Stock shall not be cumulative or mandatory. If the Corporation’s Board of Directors (or a duly
authorized committee thereof) does not declare a dividend on the Series C Preferred Stock for any Dividend Period prior to the
related Dividend Payment Date, that dividend shall not accumulate, and the Corporation shall have no obligation to pay a dividend
for that Dividend Period at any time, whether or not dividends on the Series C Preferred Stock or any other series of our preferred
stock or common stock are declared for any future Dividend Period.
(F) Dividends
on the Series C Preferred Stock shall accumulate from May 1, 2020 at the then-applicable dividend rate on the liquidation preference
amount of $10,000 per share. If the Corporation issues additional shares of the Series C Preferred Stock, dividends on those additional
shares shall accumulate from the original issue date of those additional shares at the then-applicable dividend rate.
(G) The
dividend rate for each Dividend Period in the Floating Rate Period shall be determined by the Calculation Agent using Three-month
LIBOR as in effect on the second London Banking Day prior to the beginning of the Dividend Period, which date shall be the “Dividend
Determination Date” for the relevant Dividend Period. The Calculation Agent then shall add Three-month LIBOR as determined
on the Dividend Determination Date and the applicable Spread. Once the dividend rate for the Series C Preferred Stock is determined,
the Calculation Agent shall deliver that information to the Corporation and the Transfer Agent. Absent manifest error, the Calculation
Agent’s determination of the dividend rate for a Dividend Period for the Series C Preferred Stock shall be final.
(H) So
long as any share of Series C Preferred Stock remains outstanding:
(i) no
dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for
payment on any Junior Stock (other than a dividend payable solely in shares of Junior Stock or any dividend in connection
with the implementation of a stockholder rights plan or the redemption or repurchase of any rights under such a plan);
(ii) no
shares of Junior Stock shall be repurchased, redeemed, or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior Stock, or the exchange for or
conversion into Junior Stock, through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior
Stock or pursuant to a contractually binding requirement to buy Junior Stock pursuant to a binding stock repurchase plan existing
prior to the most recently completed Dividend Period), nor shall any
monies be paid to or made available for a sinking fund for
the redemption of any such securities by the Corporation; and
(iii) no
shares of Parity Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation (other than pursuant
to pro rata offers to purchase all, or a pro rata portion, of the Series C Preferred Stock and such Parity Stock, through the use
of the proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, as a result of a reclassification
of Parity Stock for or into other Parity Stock, or by conversion into or exchange for Junior Stock), during a Dividend Period,
unless, in each case, the full dividends for the most recently completed Dividend Period on all outstanding shares of the Series
C Preferred Stock have been declared and paid in full or declared and a sum sufficient for the payment of those dividends has been
set aside. The foregoing limitations shall not apply to purchases or acquisitions of the Corporation’s Junior Stock pursuant
to any employee or director incentive or benefit plan or arrangement (including any of the Corporation’s employment, severance,
or consulting agreements) of the Corporation or of any of the Corporation’s subsidiaries heretofore or hereafter adopted.
(I) Except
as provided below, for so long as any share of Series C Preferred Stock remains outstanding, the Corporation shall not declare,
pay, or set aside for payment full dividends on any Parity Stock unless the Corporation has paid in full, or set aside payment
in full, in respect of all accumulated dividends for all Dividend Periods for outstanding shares of Series C Preferred Stock. To
the extent that the Corporation declares dividends on the Series C Preferred Stock and on any Parity Stock but cannot make full
payment of such declared dividends, the Corporation shall allocate the dividend payments on a pro rata basis among the holders
of the shares of Series C Preferred Stock and the holders of any Parity Stock then outstanding. For purposes of calculating the
pro rata allocation of partial dividend payments, the Corporation shall allocate dividend payments based on the ratio between the
then current and accumulated dividend payments due on the shares of Series C Preferred Stock and (1) in the case of cumulative
Parity Stock the aggregate of the accumulated and unpaid dividends due on any such Parity Stock and (2) in the case of non-cumulative
Parity Stock the aggregate of the declared but unpaid dividends due on any such Parity Stock. No interest shall be payable in respect
of any dividend payment on Series C Preferred Stock that may be in arrears.
(J) Subject
to the foregoing conditions, and not otherwise, dividends (payable in cash, stock, or otherwise), as may be determined by the Corporation’s
Board of Directors (or a duly authorized committee thereof), may be declared and paid on the Corporation’s common stock and
any Junior Stock from time to time out of any funds legally available for such payment, and the holders of the Series C Preferred
Stock shall not be entitled to participate in such dividends.
Section 3. Liquidation
Rights.
(A) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of the
shares of Series C Preferred Stock then outstanding shall be entitled to be paid out of the Corporation’s assets
legally available for distribution to the Corporation’s stockholders, before any distribution of assets is made to
holders of common stock or any other Junior Stock, a liquidating distribution in the amount equal to the sum of (1) the
Liquidation Preference, plus (2) the sum of any declared and unpaid dividends for prior Dividend Periods prior to the
Dividend Period in which the liquidation distribution is made and any declared and unpaid dividends for the then current
Dividend Period in which the liquidation distribution is made to the date of such liquidation distribution. After payment of
the full amount of the liquidating distributions to which they are entitled pursuant to the foregoing, the holders of Series
C Preferred Stock shall have no right or claim to any remaining assets of the Corporation.
(B) In
the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series C Preferred Stock and the
corresponding amounts payable on all shares of Parity Stock in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation, then the holders of the Series C Preferred Stock and such Parity Stock shall share ratably in
any
such distribution of assets in proportion to the full liquidating distributions to which they respectively would be entitled.
(C) For
the purposes of this Section (3), the merger or consolidation of the Corporation with or into any other entity or by another entity
with or into the Corporation or the sale, lease, exchange or other transfer of all or substantially all of the assets of the Corporation
(for cash, securities or other consideration) shall not be deemed to constitute the liquidation, dissolution or winding up of the
Corporation. If the Corporation enters into any merger or consolidation transaction with or into any other entity and the Corporation
is not the surviving entity in such transaction, the Series C Preferred Stock may be converted into shares of the surviving or
successor corporation or the direct or indirect parent of the surviving or successor corporation having terms identical to the
terms of the Series C Preferred Stock set forth herein.
Section 4. Redemption
Rights.
(A) Subject
to the further terms and conditions provided herein, the Corporation may redeem the Series C Preferred Stock, in whole or in part,
at its option, for cash, on any Dividend Payment Date on or after May 1, 2026, with not less than 30 days’ and not more than
60 days’ notice (“Optional Redemption”), subject to the approval of the appropriate federal banking agency,
at the redemption price provided in Section (4)(C) below. Dividends shall not accumulate on those shares of Series C Preferred
Stock so redeemed on and after the applicable redemption date.
(B) In
addition, the Corporation may, redeem the Series C Preferred Stock, in whole but not in part, at its option, for cash, at any time
within 90 days following a Regulatory Capital Treatment Event, subject to the approval of the appropriate federal banking agency,
at the redemption price provided in Section (4)(C) below (a “Regulatory Event Redemption”).
(C) The
redemption price for any redemption of Series C Preferred Stock, whether an Optional Redemption or Regulatory Event Redemption,
shall be equal to (i) $10,000 per share of Series C Preferred Stock, plus any declared and unpaid dividends (without regard to
any undeclared dividends) to, but excluding, the date of redemption.
(D) Any
notice given as provided in this Section (4) shall be conclusively presumed to have been duly given, whether or not the holder
receives the notice, and any defect in the notice or in the provision of the notice, to any holder of shares of Series C Preferred
Stock designated for redemption will not affect the redemption of any other shares of Series C Preferred Stock. Any notice provided
to a holder of Series C Preferred Stock shall be deemed given on the date provided, whether or not the holder actually receives
the notice. A notice of redemption shall be given not less than 30 days and not more than 60 days prior to the date of redemption
specified in the notice, and shall specify (i) the redemption date, (ii) the redemption price, (iii) if fewer than all shares of
Series C Preferred Stock are to be redeemed, the number of shares of Series C Preferred Stock to be redeemed and (iv) the manner
in which holders of Series C Preferred Stock called for redemption may obtain payment of the redemption price in respect of those
shares. Notwithstanding anything to the contrary in this paragraph, if the Series C Preferred Stock is issued in book-entry form
through The Depositary Trust Company or any other similar facility, notice of redemption may be given to the holders of Series
C Preferred Stock at such time and in any manner permitted by such facility.
(E) If
notice of redemption of any shares of Series C Preferred Stock has been given by the Corporation and if the funds necessary for
such redemption have been set aside by the Corporation in trust for the benefit of the holders of any shares of Series C Preferred
Stock, then from and after the Redemption Date such shares of Series C Preferred Stock shall no longer be outstanding for any purpose,
all dividends with respect to such shares of Series C Preferred Stock shall cease to accumulate from the Redemption Date and all
rights of the holders of such shares shall terminate, except the right to receive the Redemption Price, without interest. Series
C Preferred Stock redeemed pursuant to this Section (4) or purchased or otherwise acquired for value by the Corporation shall,
after such acquisition, have the status of authorized and unissued shares of preferred stock and may be reissued by the Corporation
at any time as shares of any series of preferred stock other than as Series C Preferred Stock.
(F) In
the event that fewer than all the outstanding shares of Series C Preferred Stock are to be redeemed, the shares of Series C Preferred
Stock to be redeemed shall be selected either pro rata or by lot or in such other manner as the Board of Directors of the Corporation
(or a duly authorized committee thereof), determines to be fair and equitable, subject to the provisions hereof. The Board of Directors
of the Corporation (or a duly authorized committee thereof) shall have the full power and authority to prescribe the terms and
conditions upon which such shares of Series C Preferred Stock may be redeemed from time to time.
(G) No
holder of Series C Preferred Stock shall have the right to require the redemption of the Series C Preferred Stock.
Section 5. Voting Rights.
(A) Holders
of Series C Preferred Stock shall not have any voting rights, except as set forth below or as otherwise required by the Tennessee
Business Corporation Act.
(B) Whenever
dividends payable on the Series C Preferred Stock or any other class or series of preferred stock ranking equally with the Series
C Preferred Stock, including the Series A Preferred Stock, the Series B Preferred Stock, the Series D Preferred Stock and the
Series E Preferred Stock, as to payment of dividends, and upon which voting rights equivalent to those described in this paragraph
have been conferred and are exercisable, have not been declared and paid in an aggregate amount equal to, as to any class or series,
the equivalent of at least six or more quarterly Dividend Periods, whether or not for consecutive Dividend Periods (a “Nonpayment”),
the holders of outstanding shares of the Series C Preferred Stock voting as a class with holders of shares of any other series
of our preferred stock ranking equally with the Series C Preferred Stock, including the Series A Preferred Stock, the Series B
Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock, as to payment of dividends, and upon which like
voting rights have been conferred and are exercisable (“Voting Parity Stock”), shall be entitled to vote for
the election of two additional directors of the Board of Directors of the Corporation on the terms set forth in this Section (5)
(and to fill any vacancies in the terms of such directorships) (the “Preferred Stock Directors”). Holders of
all series of our Voting Parity Stock shall vote as a single class. In the event that the holders of the shares of the Series
C Preferred Stock are entitled to vote as described in this Section (5), the number of members of the Corporation’s Board
of Directors at that time shall be increased by two directors, and the holders of the Series C Preferred Stock shall have the
right, as members of that class, to elect two directors at a special meeting called at the request of the holders of record of
at least 20% of the aggregate voting power of the Series C Preferred Stock or any other series of Voting Parity Stock (unless
such request is received less than 90 days before the date fixed for the Corporation’s next annual or special meeting of
the stockholders, in which event such election shall be held at such next annual or special meeting of the stockholders), provided
that the election of any Preferred Stock Directors shall not cause the Corporation to violate the corporate governance requirements
of the New York Stock Exchange (or any other exchange on which the securities of the Corporation may at such time be listed) that
listed companies must have a majority of independent directors, and provided further that at no time shall the Board of Directors
of the Corporation include more than two Preferred Stock Directors.
(C) The
Preferred Stock Directors elected at any such special meeting shall hold office until the next annual meeting of the
Corporation’s stockholders unless they have been previously terminated or removed pursuant to Section (5)(D). In case
any vacancy in the office of a Preferred Stock Director occurs (other than prior to the initial election of the Preferred
Stock Directors), the vacancy may be filled by the written consent of the Preferred Stock Director remaining in office, or if
none remains in office, by the vote of the holders of the Series C Preferred Stock (together with holders of any Voting
Parity Stock) to serve until the next annual meeting of the stockholders.
(D) When
the Corporation has paid full dividends on the Series C Preferred Stock for the equivalent of at least four quarterly
Dividend Periods, following a Nonpayment, then the right of the holders of Series C referred Stock to elect the Preferred
Stock Directors set forth in this Section (5) shall cease (except as provided by law and subject always to the same
provisions for the vesting of the special voting rights in the case of any future Nonpayment). Upon termination of the right
of the holders of the Series C
Preferred Stock and Voting Parity Stock to vote for Preferred Stock Directors as set forth in this Section (5), the term of office
of all Preferred Stock Directors then in office elected by only those holders shall terminate immediately. Whenever the term of
office of the Preferred Stock Directors ends and the related voting rights have expired, the number of directors automatically
will be decreased to the number of directors as otherwise would prevail. Any Preferred Stock Director may be removed at any time
without cause by the holders of record of a majority of the outstanding shares of the Series C Preferred Stock (together with holders
of any Voting Parity Stock) when they have the voting rights described in Section (5)(B).
(E) So
long as any shares of Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of
holders of at least 66 2/3% in voting power of the Series C Preferred Stock and any Voting Parity Stock, voting together as a single
class, given in person or by proxy, either in writing without a meeting or at any meeting called for the purpose, authorize, create
or issue any capital stock ranking senior to the Series C Preferred Stock as to dividends or the distribution of assets upon liquidation,
dissolution or winding up, or reclassify any authorized capital stock into any such shares of such capital stock or issue any obligation
or security convertible into or evidencing the right to purchase any such shares of capital stock. Further, so long as any shares
of the Series C Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote of the holders of at
least 66 2/3% in voting power of the Series C Preferred Stock, amend, alter or repeal any provision of these Articles of Amendment
or the Restated Charter of the Corporation, including by merger, consolidation or otherwise, so as to affect the powers, preferences
or special rights of the Series C Preferred Stock.
Notwithstanding
the foregoing, (i) any increase in the amount of authorized common stock or authorized preferred stock, or any increase or decrease
in the number of shares of any series of preferred stock, or the authorization, creation and issuance of other classes or series
of capital stock, in each case ranking on parity with or junior to the shares of the Series C Preferred Stock as to dividends and
distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to affect such powers, preferences or special
rights and (ii) a merger or consolidation of the Corporation with or into another entity in which the shares of the Series C Preferred
Stock (A) remain outstanding or (B) are converted into or exchanged for preference securities of the surviving entity or any entity,
directly or indirectly, controlling such surviving entity and such new preference securities have powers, preferences and special
rights that are not materially less favorable than the Series C Preferred Stock shall not be deemed to affect the powers, preferences
or special rights of the Series C Preferred Stock.
(F) Notice
for a special meeting to elect the Preferred Stock Directors shall be given in a similar manner to that provided in the
Corporation’s By-laws for a special meeting of the stockholders. If the secretary of the Corporation does not call a
special meeting within 20 days after receipt of any such request, then any holder of Series C Preferred Stock may (at the
Corporation’s expense) call such meeting, upon notice as provided in this Section (5)(F), and for that purpose shall
have access to the stock register of the Corporation.
(G) Except
as otherwise set forth in Section (5)(F) hereof, the rules and procedures for calling and conducting any meeting of the holders
of Series C Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation
and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting
or such consents shall be governed by any rules that the Board of Directors of the Corporation (or a duly authorized committee
thereof), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the
Restated Charter of the Corporation, the By-laws of the Corporation, and applicable laws and the rules of any national securities
exchange or other trading facility on which Series C Preferred Stock is listed or traded at the time.
Section 6. Conversion Rights.
The holders of
Series C Preferred Stock shall not have any rights to convert such shares into shares of any other class or series of stock or
into any other securities of, or any interest or property in, the Corporation.
Section 7. No Sinking Fund.
No sinking fund
shall be established for the retirement or redemption of Series C Preferred Stock.
Section 8. No Preemptive or Subscription
Rights.
No holder of Series
C Preferred Stock of the Corporation shall, as such holder, have any preemptive right to purchase or subscribe for any additional
shares of stock of the Corporation or any other security of the Corporation that it may issue or sell.
Section 9. No Other Rights.
The Series C Preferred
Stock shall not have any designations, preferences or relative, participating, optional or other special rights except as set forth
herein or in the Company’s Restated Charter or as otherwise required by applicable law.
ANNEX E
STANDARD PROVISIONS SERIES D
Section
1. Definitions.
As used herein
with respect to Series D Preferred Stock:
(A) “Adjustments”
shall have the meaning set forth in Section (1)(Y)(iii) hereof.
(B) “Alternative
Rate” shall have the meaning set forth in Section (1)(Y)(iii) hereof.
(C) “Business
Day” shall mean (i) with respect to the Fixed Rate Period, any weekday in New York, New York that is not a day on which
banking institutions in such city are authorized or required by law, regulation, or executive order to be closed and (ii) with
respect to the Floating Rate Period, any weekday in New York, New York that is not a day on which banking institutions in such
city are authorized or required by law, regulation, or executive order to be closed, and additionally, is a London Banking Day.
(D) “Calculation
Agent” shall mean, at any time, the Corporation, an entity affiliated with the Corporation, or the person or entity appointed
by the Corporation pursuant to a calculation agent agreement between the Corporation and a calculation agent and serving as such
agent with respect to Series D Preferred Stock at such time (including any successor to such person or entity). The Corporation
will be the calculation agent for Series D Preferred Stock as of the original issue date.
(E) “Dividend
Determination Date” shall have the meaning set forth in Section (2)(G) hereof.
(F) “Dividend
Payment Dates” shall have the meaning set forth in Section (2)(B) hereof.
(G) “Dividend
Period” shall mean the period from, and including, each Dividend Payment Date to, but excluding, the next succeeding
Dividend Payment Date, except for the initial Dividend Period, which shall be the period from, and including, May 1, 2020 to, but
excluding, the next succeeding Dividend Payment Date.
(H) “Fixed
Rate Period” shall have the meaning set forth in Section (2)(A) hereof.
(I) “Floating
Rate Period” shall have the meaning set forth in Section (2)(A) hereof.
(J) “Junior
Stock” shall mean the Corporation’s common stock and any other class or series of the Corporation’s capital
stock over which the Series D Preferred Stock has preference or priority in the payment of dividends or in the distribution of
assets on the liquidation, dissolution or winding up of the Corporation.
(K) “IFA”
shall have the meaning set forth in Section (1)(Y)(iii) hereof.
(L) “LIBOR
Event” shall have the meaning set forth in Section (1)(Y)(iii) hereof.
(M) “Liquidation
Preference” shall mean $10,000 per share of Series D Preferred Stock.
(N) “London
Banking Day” shall mean any day on which commercial banks are open dealings in deposits in U.S. dollars in the London
interbank market.
(O) “Nonpayment”
shall have the meaning set forth in Section (5)(B) hereof.
(P) “Optional
Redemption” shall have the meaning set forth in Section (4)(A) hereof.
(Q) “Parity
Stock” shall mean any class or series of the Corporation’s capital stock that ranks on a par with the Series D
Preferred Stock in the payment of dividends and in the distribution of assets on the liquidation, dissolution or winding up of
the Corporation, which shall include the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and
the Series E Preferred Stock and any other class or series of the Corporation’s capital stock hereafter authorized that ranks
on a par with the Series D Preferred Stock in the payment of dividends and in the distribution of assets on any liquidation, dissolution
or winding up of the Corporation.
(R) “Preferred
Stock Directors” shall have the meaning set forth in Section (5)(B) hereof.
(S) “Regulatory
Capital Treatment Event” shall mean a good faith determination by the Corporation that, as a result of any (i) amendment
to, clarification of, or change (including any announced prospective change) in, the laws or regulations of the United States or
any political subdivision of or in the United States that is enacted or becomes effective after the initial issuance of the Series
D Preferred Stock; (ii) proposed change in those laws or regulations that is announced or becomes effective after the initial
issuance of the Series D Preferred Stock; or (iii) official administrative decision or judicial decision or administrative
action or other official pronouncement interpreting or applying those laws or regulations that is announced or becomes effective
after the initial issuance of the Series D Preferred Stock, there is more than an insubstantial risk that the Corporation shall
not be entitled to treat the full liquidation value of the Series D Preferred Stock then outstanding as “Tier 1 Capital”
(or its equivalent) for purposes of the capital adequacy laws or regulations of the Board of Governors of the Federal Reserve System
(or, as and if applicable, the capital adequacy laws or regulations of any successor appropriate federal banking agency), as then
in effect and applicable, for as long as any share of Series D Preferred Stock is outstanding.
(T) “Regulatory
Event Redemption” shall have the meaning set forth in Section (4)(B) hereof.
(U) “Spread”
shall have the meaning set forth in Section (2)(A) hereof.
(V) “Three-month
LIBOR” shall mean, for each Dividend Determination Date related to the Floating-Rate Period, the rate determined by the
Calculation Agent as follows:
(i) The
London interbank offered rate for deposits in U.S. dollars for a three month period, as that rate appears on Reuters screen page
“LIBOR01” (or any successor or replacement page) at approximately 11:00 a.m., London time, on the relevant Dividend
Determination Date.
(ii) If
no offered rate appears on Reuters screen page “LIBOR01” (or any successor or replacement page) on the relevant
Dividend Determination Date at approximately 11:00 a.m., London time, then the Calculation Agent, in consultation with the
Corporation, shall select four major banks in the London interbank market and shall request each of their principal London
offices to provide a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1,000,000
are offered by it to prime banks in the London interbank market, on that date and at that time. If at least two quotations
are provided, Three-month LIBOR shall be the arithmetic average (rounded upward if necessary to the nearest .00001 of 1%) of
the quotations provided. Otherwise, the Calculation Agent in consultation with the Corporation shall select three major banks
in New York City and shall request each of them to provide a quotation of the rate offered by it at approximately 11:00 a.m.,
New York City time, on the Dividend Determination Date for loans in U.S. dollars to leading European banks for a three month
period for the applicable Dividend Period in an amount of at least $1,000,000. If three quotations are provided, Three-month
LIBOR shall be the arithmetic average of the quotations provided. Otherwise, if a LIBOR Event (as
defined below) has not
occurred, Three-month LIBOR for the next Dividend Period shall be equal to Three-month LIBOR in effect for the then-current
Dividend Period or, in the case of the first Dividend Period in the Floating Rate Period, the most recent rate on which
Three-month LIBOR could have been determined in accordance with the first sentence of this Section had the dividend rate been
a floating rate during the Fixed Rate Period.
(iii) Notwithstanding
clauses (1) and (2) above, if the Corporation, in its sole discretion, determines on the relevant Dividend Determination Date that
the Three-month LIBOR has been permanently discontinued or is no longer viewed as an acceptable benchmark for securities like the
Series D Preferred Stock, and the Corporation has notified the Calculation Agent (if it is not the Corporation) of such determination
(a “LIBOR Event”), then the Calculation Agent will use, as directed by the Corporation, as a substitute or successor
base rate (the “Alternative Rate”) for each future Dividend Determination Date, the alternative reference rate
selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee or working group
thereof) that is consistent with market practice regarding a substitute for the Three-month LIBOR. As part of such substitution,
the Calculation Agent will, as directed by the Corporation, make such adjustment to the Alternative Rate or the spread thereon,
as well as the business day convention, the Dividend Determination Date and related provisions and definitions (“Adjustments”),
in each case that are consistent with market practice for the use of such Alternative Rate. Notwithstanding the foregoing, if the
Calculation Agent determines that there is no alternative reference rate selected by the central bank, reserve bank, monetary authority
or any similar institution (including any committee or working group thereof) that is consistent with market practice regarding
a substitute for Three-month LIBOR, the Corporation may, in its sole discretion, appoint an independent financial advisor (“IFA”)
to determine an appropriate Alternative Rate and any Adjustments, and the decision of the IFA will be binding on the Corporation,
the Calculation Agent and the holders of the Series D Preferred Stock. If on any Dividend Determination Date during the Floating-Rate
Period (which may be the first Dividend Determination Date of the Floating-Rate Period) a LIBOR Event has occurred prior to such
Dividend Determination Date and for any reason an Alternative Rate has not been determined or there is no such market practice
for the use of such Alternative Rate (and, in each case, an IFA has not determined an appropriate Alternative Rate and Adjustments
or an IFA has not been appointed) as of such Dividend Determination Date, then commencing on such Dividend Determination Date the
dividend rate, Business Day convention and manner of calculating dividends applicable during the Fixed-Rate Period will be in effect
for the applicable Dividend Period and will remain in effect during the remainder of the Floating-Rate Period. The establishment
of Three-month LIBOR for each Dividend Period by the Calculation Agent (including, for the avoidance of doubt, at the direction
of the Corporation in the case of clause (2)) or IFA, as applicable, shall (in the absence of manifest error) be final and binding.
For the avoidance of doubt, any Adjustments made pursuant to clause (2) of the definition of “Three-month LIBOR” shall
not be subject to the vote or consent of the holders of Series D Preferred Stock.
(W) “Voting
Parity Stock” shall have the meaning set forth in Section (5)(B) hereof.
Section 2. Dividends.
(A) Holders
of the Series D Preferred Stock shall be entitled to receive, only when, as, and if declared by the Corporation’s
Board of Directors (or a duly authorized committee thereof), out of assets legally available under applicable law for
payment, non-cumulative cash dividends based on the Liquidation Preference, and no more, at a rate equal to (1) 6.100% per
annum, for each semi-annual Dividend Period occurring from, and including, May 1, 2020 to, but excluding, May 1, 2024 (the
“Fixed Rate Period”), and (2) thereafter, Three-month LIBOR plus a spread of 385.9 basis points per annum
(the “Spread”), for each quarterly Dividend Period beginning May 1, 2024 (the “Floating Rate
Period”) , subject to potential adjustment as provided in clause (3) of the definition of three-month LIBOR .
(B) When,
as, and if declared by the Corporation’s Board of Directors (or a duly authorized committee thereof), the Corporation shall
pay cash dividends on the Series D Preferred Stock (i) semi-annually, in arrears, on May 1 and November 1 of each year, beginning
on November 1, 2020 and ending on
May 1, 2024, and (ii) quarterly, in arrears, on February 1, May 1, August 1, and November 1,
beginning on August 1, 2024, subject to potential adjustment as provided in clause (3) of the definition of three-month LIBOR (each
such date, a “Dividend Payment Date”). The Corporation shall pay cash dividends to the holders of record of
shares of the Series D Preferred Stock as such holders appear on the Corporation’s stock register on the applicable record
date, which shall be the fifteenth calendar day before that Dividend Payment Date or such other record date fixed by our Board
of Directors (or a duly authorized committee thereof) that is not more than 60 nor less than 10 days prior to such Dividend Payment
Date.
(C) If
any Dividend Payment Date on or prior to May 1, 2024 is a day that is not a Business Day, then the dividend with respect to that
Dividend Payment Date shall instead be paid on the immediately succeeding Business Day, without interest or other payment in respect
of such delayed payment. If any Dividend Payment Date after May 1, 2024 is a day that is not a Business Day, then the Dividend
Payment Date shall be the immediately succeeding Business Day unless such day falls in the next calendar month, in which case the
Dividend Payment Date shall instead be the immediately preceding day that is a Business Day, and dividends will accumulate to the
Dividend Payment Date as so adjusted.
(D) The
Corporation shall calculate dividends on the Series D Preferred Stock for the Fixed Rate Period on the basis of a 360-day year
of twelve 30-day months. The Corporation shall calculate dividends on the Series D Preferred Stock for the Floating Rate Period
on the basis of the actual number of days in a Dividend Period and a 360-day year, subject to potential adjustment as provided
in clause (3) of the definition of three-month LIBOR. Dollar amounts resulting from such calculation shall be rounded to the nearest
cent, with one-half cent being rounded upward.
(E) Dividends
on the Series D Preferred Stock shall not be cumulative or mandatory. If the Corporation’s Board of Directors (or a duly
authorized committee thereof) does not declare a dividend on the Series D Preferred Stock for any Dividend Period prior to the
related Dividend Payment Date, that dividend shall not accumulate, and the Corporation shall have no obligation to pay a dividend
for that Dividend Period at any time, whether or not dividends on the Series D Preferred Stock or any other series of our preferred
stock or common stock are declared for any future Dividend Period.
(F) Dividends
on the Series D Preferred Stock shall accumulate from May 1, 2020 at the then-applicable dividend rate on the liquidation preference
amount of $10,000 per share (equivalent to $25 per depositary share). If the Corporation issues additional shares of the Series
D Preferred Stock, dividends on those additional shares shall accumulate from the original issue date of those additional shares
at the then-applicable dividend rate.
(G) The
dividend rate for each Dividend Period in the Floating Rate Period shall be determined by the Calculation Agent using Three-month
LIBOR as in effect on the second London Banking Day prior to the beginning of the Dividend Period, which date shall be the “Dividend
Determination Date” for the relevant Dividend Period. The Calculation Agent then shall add Three-month LIBOR as determined
on the Dividend Determination Date and the applicable Spread. Once the dividend rate for the Series D Preferred Stock is determined,
the Calculation Agent shall deliver that information to the Corporation and the Transfer Agent. Absent manifest error, the determination
by the Calculation Agent (or, for the avoidance of doubt, by the IFA in the case of Section (1)(Y)(iii) above) of the dividend
rate for a Dividend Period for the Series D Preferred Stock shall be final.
(H) During
any Dividend Period, so long as any share of Series D Preferred Stock remains outstanding unless (1) the full dividends for
the immediately preceding Dividend Period on all outstanding shares of Series D preferred stock have been paid in full or
declared, and funds sufficient for the payment of those dividends set aside; and (2) we are not in default on our obligation
to redeem any shares of Series D preferred stock that have been called for redemption,
(i) no
dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment
on any Junior Stock (other than a dividend payable solely in
shares of Junior Stock or any dividend in connection with the implementation
of a shareholder rights plan or the redemption or repurchase of any rights under such a plan);
(ii) no
shares of Junior Stock shall be repurchased, redeemed, or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior Stock, or the exchange for or
conversion into Junior Stock, through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior
Stock or pursuant to a contractually binding requirement to buy Junior Stock pursuant to a binding stock repurchase plan existing
prior to the most recently completed Dividend Period), nor shall any monies be paid to or made available for a sinking fund for
the redemption of any such securities by the Corporation; and
(iii) no
shares of Parity Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation (other than pursuant
to pro rata offers to purchase all, or a pro rata portion, of the Series D Preferred Stock and such Parity Stock, through the use
of the proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, as a result of a reclassification
of Parity Stock for or into other Parity Stock, or by conversion into or exchange for Junior Stock), during a Dividend Period.
The foregoing limitations shall not
apply to purchases or acquisitions of the Corporation’s Junior Stock pursuant to any employee or director incentive or benefit
plan or arrangement (including any of the Corporation’s employment, severance, or consulting agreements) of the Corporation
or of any of the Corporation’s subsidiaries heretofore or hereafter adopted.
(I) Except
as provided below, for so long as any share of Series D Preferred Stock remains outstanding, the Corporation shall not declare,
pay, or set aside for payment full dividends on any Parity Stock unless the Corporation has paid in full, or set aside funds sufficient
for payment in full, in respect of all accumulated dividends for all Dividend Periods for outstanding shares of Series D Preferred
Stock. To the extent that the Corporation declares dividends on the Series D Preferred Stock and on any Parity Stock but cannot
make full payment of such declared dividends, the Corporation shall allocate the dividend payments on a pro rata basis among the
holders of the shares of Series D Preferred Stock and the holders of any Parity Stock then outstanding. For purposes of calculating
the pro rata allocation of partial dividend payments, the Corporation shall allocate dividend payments based on the ratio between
the then current and accumulated dividend payments due on the shares of Series D Preferred Stock and (1) in the case of cumulative
Parity Stock the aggregate of the accumulated and unpaid dividends due on any such Parity Stock and (2) in the case of non-cumulative
Parity Stock the aggregate of the declared but unpaid dividends due on any such Parity Stock. No interest shall be payable in respect
of any dividend payment on Series D Preferred Stock that may be in arrears.
(J) Subject
to the foregoing conditions, and not otherwise, dividends (payable in cash, stock, or otherwise), as may be determined by the Corporation’s
Board of Directors (or a duly authorized committee thereof), may be declared and paid on the Corporation’s common stock and
any Junior Stock from time to time out of any funds legally available for such payment, and the holders of the Series D Preferred
Stock shall not be entitled to participate in such dividends.
Section 3. Liquidation
Rights.
(A) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of the
shares of Series D Preferred Stock then outstanding shall be entitled to be paid out of the Corporation’s assets
legally available for distribution to the Corporation’s shareholders, before any distribution of assets is made to
holders of common stock or any other Junior Stock, a liquidating distribution in the amount equal to the sum of (1) the
Liquidation Preference, plus (2) the sum of any declared and unpaid dividends for prior Dividend Periods prior to the
Dividend Period in which the liquidation distribution is made and any declared and unpaid dividends for the then current
Dividend Period in which the liquidation distribution is made to the date of such liquidation distribution. After payment of
the full
amount of the liquidating distributions to which they are entitled pursuant to the foregoing, the holders of Series D Preferred
Stock shall have no right or claim to any remaining assets of the Corporation.
(B) In
the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series D Preferred Stock and the
corresponding amounts payable on all shares of Parity Stock in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation, then the holders of the Series D Preferred Stock and such Parity Stock shall share ratably in any
such distribution of assets in proportion to the full liquidating distributions to which they respectively would be entitled.
(C) For
the purposes of this Section (3), the merger or consolidation of the Corporation with or into any other entity or by another entity
with or into the Corporation or the sale, lease, exchange or other transfer of all or substantially all of the assets of the Corporation
(for cash, securities or other consideration) shall not be deemed to constitute the liquidation, dissolution or winding up of the
Corporation. If the Corporation enters into any merger or consolidation transaction with or into any other entity and the Corporation
is not the surviving entity in such transaction, the Series D Preferred Stock may be converted into or exchanged for preference
securities of the surviving entity or any entity, directly or indirectly, controlling such surviving entity, so long as such new
preference securities have powers, preferences and special rights that are identical to the powers, preferences and special rights
of the Series D Preferred Stock set forth herein.
Section 4. Redemption Rights.
(A) Subject
to the further terms and conditions provided herein, the Corporation may redeem the Series D Preferred Stock, in whole or in part,
at its option, for cash, on any Dividend Payment Date on or after May 1, 2024, with not less than 30 days’ and not more than
60 days’ notice (“Optional Redemption”), subject to the approval of the appropriate federal banking agency,
at the redemption price provided in Section (4)(C) below. Dividends shall not accumulate on those shares of Series D Preferred
Stock so redeemed on and after the applicable redemption date.
(B) In
addition, the Corporation may, redeem the Series D Preferred Stock, in whole but not in part, at its option, for cash, at any time
within 90 days following a Regulatory Capital Treatment Event, subject to the approval of the appropriate federal banking agency,
at the redemption price provided in Section (4)(C) below (a “Regulatory Event Redemption”).
(C) The
redemption price for any redemption of Series D Preferred Stock, whether an Optional Redemption or Regulatory Event Redemption,
shall be equal to (1) $10,000 per share of Series D Preferred Stock, plus any declared and unpaid dividends (without regard to
any undeclared dividends) to, but excluding, the date of redemption.
(D) Any
notice given as provided in this Section (4) shall be conclusively presumed to have been duly given, whether or not the
holder receives the notice, and any defect in the notice or in the provision of the notice, to any holder of shares of Series
D Preferred Stock designated for redemption will not affect the redemption of any other shares of Series D Preferred Stock.
Any notice provided to a holder of Series D Preferred Stock shall be deemed given on the date provided, whether or not the
holder actually receives the notice. A notice of redemption shall be given not less than 30 days and not more than 60 days
prior to the date of redemption specified in the notice, and shall specify (i) the redemption date, (ii) the redemption
price, (iii) if fewer than all shares of Series D Preferred Stock are to be redeemed, the number of shares of Series D
Preferred Stock to be redeemed and (iv) the manner in which holders of Series D Preferred Stock called for redemption may
obtain payment of the redemption price in respect of those shares. Notwithstanding anything to the contrary in this
paragraph, if the Series D Preferred Stock is issued in book-entry form through The Depositary Trust Company or any other
similar facility, notice of redemption may be given to the holders of Series D Preferred Stock at such time and in any manner
permitted by such facility.
(E) If
notice of redemption of any shares of Series D Preferred Stock has been given by the Corporation and if the funds necessary for
such redemption have been set aside by the Corporation in trust for the benefit of the holders of any shares of Series D Preferred
Stock, then from and after the Redemption Date such shares of Series D Preferred Stock shall no longer be outstanding for any purpose,
all dividends with respect to such shares of Series D Preferred Stock shall cease to accumulate from the Redemption Date and all
rights of the holders of such shares shall terminate, except the right to receive the Redemption Price, without interest. Series
D Preferred Stock redeemed pursuant to this Section (4) or purchased or otherwise acquired for value by the Corporation shall,
after such acquisition, have the status of authorized and unissued shares of preferred stock and may be reissued by the Corporation
at any time as shares of any series of preferred stock other than as Series D Preferred Stock.
(F) In
the event that fewer than all the outstanding shares of Series D Preferred Stock are to be redeemed, the shares of Series D Preferred
Stock to be redeemed shall be selected either pro rata or by lot or in such other manner as the Board of Directors (or a duly authorized
committee thereof), determines to be fair and equitable, subject to the provisions hereof. The Board of Directors (or a duly authorized
committee thereof) shall have the full power and authority to prescribe the terms and conditions upon which such shares of Series
D Preferred Stock may be redeemed from time to time.
(G) No
holder of Series D Preferred Stock shall have the right to require the redemption of the Series D Preferred Stock.
Section 5. Voting
Rights.
(A) Holders
of Series D Preferred Stock shall not have any voting rights, except as set forth below or as otherwise required by the Tennessee
Business Corporation Act.
(B) Whenever
dividends payable on the Series D Preferred Stock or any other class or series of preferred stock ranking equally with the Series
D Preferred Stock, including the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series
E Preferred Stock, as to payment of dividends, and upon which voting rights equivalent to those described in this paragraph have
been conferred and are exercisable, have not been declared and paid in an aggregate amount equal to, as to any class or series,
the equivalent of at least three Fixed Rate Periods or at least six Floating Rate Periods, as applicable, whether or not for consecutive
Dividend Periods (a “Nonpayment”), the holders of outstanding shares of the Series D Preferred Stock voting
as a class with holders of shares of any other series of our preferred stock ranking equally with the Series D Preferred Stock,
including the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series E Preferred Stock,
as to payment of dividends, and upon which like voting rights have been conferred and are exercisable (“Voting Parity
Stock”), shall be entitled to vote for the election of two additional directors of the Board of Directors on the terms
set forth in this Section (5) (and to fill any vacancies in the terms of such directorships) (the “Preferred Stock Directors”).
Holders of all series of our Voting Parity Stock shall vote as a single class. In the event that the holders of the shares of the
Series D Preferred Stock are entitled to vote as described in this Section (5), the number of members of the Corporation’s
Board of Directors at that time shall be increased by two directors, and the holders of the Series D Preferred Stock shall have
the right, as members of that class, to elect two directors at a special meeting called at the request of the holders of record
of at least 20% of the aggregate voting power of the Series D Preferred Stock or any other series of Voting Parity Stock (unless
such request is received less than 90 days before the date fixed for the Corporation’s next annual or special meeting of
the shareholders, in which event such election shall be held at such next annual or special meeting of the shareholders), provided
that the election of any Preferred Stock Directors shall not cause the Corporation to violate the corporate governance requirements
of the New York Stock Exchange (or any other exchange on which the securities of the Corporation may at such time be listed)
that listed companies must have a majority of independent directors, and provided further that at no time shall the Board of
Directors include more than two Preferred Stock Directors.
(C) The
Preferred Stock Directors elected at any such special meeting shall hold office until the next annual meeting of the Corporation’s
shareholders unless they have been previously terminated or removed pursuant to Section (5)(D). In case any vacancy in the office
of a Preferred Stock Director occurs (other than prior to the initial election of the Preferred Stock Directors), the vacancy may
be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by the vote
of the holders of the Series D Preferred Stock (together with holders of any Voting Parity Stock) to serve until the next annual
meeting of the shareholders.
(D) When
the Corporation has paid full dividends on the Series D Preferred Stock for the equivalent of at least two Fixed Rate Periods or
at least four Floating Rate Periods, as applicable, following a Nonpayment, then the right of the holders of Series D Preferred
Stock to elect the Preferred Stock Directors set forth in this Section (5) shall cease (except as provided by law and subject always
to the same provisions for the vesting of the special voting rights in the case of any future Nonpayment). Upon termination of
the right of the holders of the Series D Preferred Stock and Voting Parity Stock to vote for Preferred Stock Directors as set forth
in this Section (5), the term of office of all Preferred Stock Directors then in office elected by only those holders shall terminate
immediately. Whenever the term of office of the Preferred Stock Directors ends and the related voting rights have expired, the
number of directors automatically will be decreased to the number of directors as otherwise would prevail. Any Preferred Stock
Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of the Series
D Preferred Stock (together with holders of any Voting Parity Stock) when they have the voting rights described in Section (5)(B).
(E) So
long as any shares of Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of
holders of at least 66 2/3% in voting power of the Series D Preferred Stock and any Voting Parity Stock, voting together as a single
class, given in person or by proxy, either in writing without a meeting or at any meeting called for the purpose, authorize, create
or issue any capital stock ranking senior to the Series D Preferred Stock as to dividends or the distribution of assets upon liquidation,
dissolution or winding up, or reclassify any authorized capital stock into any such shares of such capital stock or issue any obligation
or security convertible into or evidencing the right to purchase any such shares of capital stock. Further, so long as any shares
of the Series D Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote of the holders of at
least 66 2/3% in voting power of the Series D Preferred Stock, amend, alter or repeal any provision of these Articles of Amendment
or the Restated Charter of the Corporation, including by merger, consolidation or otherwise, so as to affect the powers, preferences
or special rights of the Series D Preferred Stock. Notwithstanding the foregoing, (i) any increase in the amount of authorized
common stock or authorized preferred stock, or any increase or decrease in the number of shares of any series of preferred stock,
or the authorization, creation and issuance of other classes or series of capital stock, in each case ranking on parity with or
junior to the shares of the Series D Preferred Stock as to dividends and distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to affect such powers, preferences or special rights and (ii) a merger or consolidation of the
Corporation with or into another entity in which the shares of the Series D Preferred Stock (A) remain outstanding or (B) are converted
into or exchanged for preference securities of the surviving entity or any entity, directly or indirectly, controlling such surviving
entity, so long as such new preference securities have powers, preferences and special rights that are identical to the powers,
preferences and special rights of the Series D Preferred Stock set forth herein shall not be deemed to affect the powers, preferences
or special rights of the Series D Preferred Stock.
(F) Notice
for a special meeting to elect the Preferred Stock Directors shall be given in a similar manner to that provided in the Corporation’s
By-laws for a special meeting of the shareholders. If the secretary of the Corporation does not call a special meeting within 20
days after receipt of any such request, then any holder of Series D Preferred Stock may (at the Corporation’s expense) call
such meeting, upon notice as provided in this Section (5)(F), and for that purpose shall have access to the stock register of the
Corporation.
(G) Except
as otherwise set forth in Section (5)(F) hereof, the rules and procedures for calling and conducting any meeting of the holders
of Series D Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation
and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting
or such consents shall be governed by any rules that the Board of Directors of the Corporation (or a duly authorized committee
thereof), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Restated
Charter of the Corporation, the By-laws of the Corporation, and applicable laws and the rules of any national securities exchange
or other trading facility on which Series D Preferred Stock is listed or traded at the time.
Section 6. Conversion
Rights.
The holders of
Series D Preferred Stock shall not have any rights to convert such shares into shares of any other class or series of stock or
into any other securities of, or any interest or property in, the Corporation.
Section 7. No Sinking Fund.
No sinking fund shall be
established for the retirement or redemption of Series D Preferred Stock.
Section 8. No Preemptive
or Subscription Rights.
No holder of Series
D Preferred Stock of the Corporation shall, as such holder, have any preemptive right to purchase or subscribe for any additional
shares of stock of the Corporation or any other security of the Corporation that it may issue or sell.
Section 9. Information Rights.
During any period
in which we are not subject to Section 13 or 15(d) of the Exchange Act and any shares of Series D preferred stock are outstanding,
we will use commercially reasonable efforts to provide any requesting beneficial owner a copy of our most recently filed “Consolidated
Financial Statements for Holding Companies-FR Y-9C” and “Consolidated Reports of Condition and Income for a Bank With
Domestic Offices Only-FFIEC 041,” in each case or any applicable successor form.
Section 10. No Other Rights.
The Series D Preferred
Stock shall not have any designations, preferences or relative, participating, optional or other special rights except as set forth
herein or in the Corporation’s Restated Charter or as otherwise required by applicable law.
