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EXHIBIT 4.4
CERTIFICATE OF DESIGNATION
OF
SERIES B PREFERRED STOCK
OF
UNIONBANCORP, INC.
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
UNIONBANCORP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Certificate of Incorporation of the said
Corporation, the said Board of Directors on August 5, 1996, adopted the
following resolution creating a series of 1,092 shares of Preferred Stock
designated as "Series B Preferred Stock":
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions
of the Certificate of Incorporation, a series of Preferred Stock,
no par value per share, of the Corporation be and hereby is
created, and that the designation and number of shares thereof and
the voting and other powers, preferences and relative,
participating, optional or other rights of the shares of such
series and the qualifications, limitations and restrictions
thereof are as follows:
SERIES B PREFERRED STOCK
1. DESIGNATION AND AMOUNT. The board of directors (the "Board") of
UnionBancorp, Inc., a Delaware corporation (the "Company"), has designated
1,092 shares of the Company's authorized and unissued preferred stock as
"Series B Preferred Stock," has authorized such shares for issuance at a price
of $1,000 per share (the "Series B Preferred Stock") and has determined that no
further shares of Series B Preferred Stock shall be issued.
2. DIVIDENDS. (a) The holders of record of the then outstanding shares
of Series B Preferred Stock shall be entitled to receive when, as and if
declared by the Board out of any funds legally available therefor, cumulative
dividends at the annual rate of $60.00 per share payable in four equal cash
payments on the 20th day (or if not a business day, as defined below, on
the next business day thereafter) of April, July, October and January
commencing October, 1996, provided, however, that any such quarterly cash
payment shall be prorated with respect to any shares of Series B Preferred
Stock that were outstanding less than the total number of days in the calendar
quarter immediately preceding any such payment date. The amount of any such
prorated cash payment shall be computed on the basis of the actual number of
days in any calendar quarter during which such shares of Series B Preferred
Stock were outstanding. Each such dividend shall be payable to holders of
record as they appear on the stock books of the Company on such record dates,
not less than 10 and not more than 60 days preceding the dividend payment date,
as shall be fixed by the Board. No dividends, other than those payable solely
in the Company's common stock, $1.00 par value ("Common Stock"), shall be paid
during any fiscal year of the Company with respect to shares of Common Stock or
any other security issued by the Company other than Series A until dividends in
the total amount of $60.00 per share on Series B Preferred Stock shall have
been paid. Such dividends shall accrue on each share of Series B Preferred
Stock from the date of issuance and from day to day thereafter, whether or not
earned or declared. Notwithstanding the foregoing, such dividends shall be
cumulative so that if such dividends in respect of any previous or current
annual dividend period, at the annual rate specified above, shall not have been
paid or declared and a sum sufficient for the payment thereof set apart, the
deficiency for any prior
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year and the amount owed in the current year shall first be fully paid
before any dividend or other distribution shall be paid on or declared and set
apart for the shares of Common Stock. A "business day" shall be deemed to be
any day when trading of securities occurs on the New York Stock Exchange.
(b) Unless full dividends on Series B Preferred Stock for all past
dividend periods and the then current dividend period shall have been paid or
declared and a sum sufficient for the payment thereof set apart: (i) no dividend
whatsoever whether in cash, securities or other property (other than a dividend
payable solely in shares of Common Stock) shall be paid or declared and set
aside for payment, and no distribution shall be made, on any shares of Common
Stock or other class of preferred stock authorized after the date hereof except
for the Series A Convertible Preferred Stock (the "Series A Preferred Stock");
and (ii) no shares of Common Stock or other class of preferred stock authorized
after the date hereof except the Series A Preferred Stock shall be purchased,
redeemed or otherwise acquired by the Company and no funds shall be paid into
or set aside or made available for a sinking fund for the purchase, redemption
or other acquisition thereof without the approval of the holders of at least a
majority of the then outstanding shares of Series B Preferred Stock.
(c) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of
the Company unless the Company could, under paragraph (b) of this Section 2,
purchase or otherwise acquire such shares at such time and such manner.
3. REDEMPTION. (a) Each issued and outstanding share of Series B
Preferred Stock may be redeemed at the option of the holder or his or her
estate for cash as set forth below at any time after the first to occur of:
(i) the death of the original holder of such share of Series B Preferred
Stock; or (ii) the tenth anniversary of the original issuance of such share, in
either case at a price of $1,000 per share, plus any accrued but unpaid
dividends thereon whether or not declared, through the Redemption Date, as
defined below (collectively, the "Redemption Price").
(b) Before any holder of shares of Series B Preferred Stock shall be
entitled to redeem any such shares for cash, he shall surrender the certificate
or certificates therefor, duly endorsed, at the office of the Company or of
any transfer agent of Series B Preferred Stock or Common Stock, with a written
notice that he elects to redeem the same and shall state therein the number of
shares of Series B Preferred Stock being redeemed for cash and the name or
names to whom such payment shall be made. The date the Company receives such
surrendered certificates and written notice shall be deemed to be the
Redemption Date. Thereupon the Redemption Price for such shares shall be
payable to the order of the person whose name appears on such certificate or
certificates as the owner thereof, and each surrendered certificate shall be
cancelled and retired.
(c) If on the Redemption Date the Redemption Price is paid, then the
dividends with respect to the shares of Series B Preferred Stock redeemed shall
cease to accrue after the Redemption Date.
(d) Notwithstanding anything contained in this paragraph 3(c) to the
contrary, the Company shall not be obligated to redeem for cash any shares of
Series B Preferred Stock if such redemption would cause the Company to be in
violation of any statute, rule, order, regulation or agreement to which the
Company is a party relating to minimum capital requirements. The Company shall
use its best efforts promptly to remedy any such violation if the same has the
effect of preventing the redemption of any shares of Series B Preferred Stock,
and shall promptly complete the redemption of shares after such violation has
been cured.
4. VOTING RIGHTS. (a) The holders of each share of Series B Preferred
Stock shall not be entitled to vote, except: (i) as required by law; and (ii)
to approve the authorization or issuance of any shares of any class or
series of stock which ranks senior or on a parity with, the Series B Preferred
Stock in respect of dividends and distributions upon the dissolution,
liquidation or winding up of the Company.
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(b) Notwithstanding anything contained herein to the contrary, the
holders of Series B Preferred Stock shall vote as a separate class when
required by law and to approve the matters set forth in Section 4(a)(ii). In
such circumstances, the affirmative vote of the holders of a majority (or such
greater percentage as may be required by law or the Company's certificate of
incorporation or bylaws) of the voting rights provided in this Section for the
Series B Preferred Stock, voting separately as a class, shall be necessary to
approve such proposed action by the holders of Series B Preferred Stock.
5. LIQUIDATION. Upon the dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, the holders of shares of Series B
Preferred Stock shall be entitled to receive out of the assets of the Company
available for distribution to stockholders, the amount of $1,000 per share,
plus any dividends whether or not declared or due which have accrued thereon
through the date of such distribution, but which remain unpaid, before any
payment or distribution shall be made on shares of Common Stock or any other
securities issued by the Company, except that holders of shares of Series B
Preferred Stock shall share pro rata in any such payment or distribution with
the holders of Series A Preferred Stock. In the event the assets of the
Company available for distribution to the holders of shares of Series B
Preferred Stock upon any dissolution, liquidation or winding up of the Company
shall be insufficient to pay in full all amounts to which such holders are
entitled pursuant to this paragraph, then all of the assets of the Company to
be distributed shall be distributed ratably to the holders of Series B
Preferred Stock and Series A Preferred Stock. After the payment to the holders
of the shares of Series B Preferred Stock of the full amounts provided for in
this paragraph, the holders of shares of Series B Preferred Stock as such shall
have no right or claim to any of the remaining assets of the Company.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
this 2nd day of August, 1996.
ATTEST UNIONBANCORP, INC.
By: \s\ Charles J. Grako By: \s\ R. Scott Grigsby
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Charles J. Grako R. Scott Grigsby
Secretary/Treasurer President and Chief
Executive Officer
STATE OF ILLINOIS )
) SS:
COUNTY OF LA SALLE )
BE IT REMEMBERED that, on _______________, 1996, before me, a Notary
Public duly authorized by law to take acknowledgement of deeds, personally came
each of R. Scott Grigsby and Charles J. Grako, the President and Chief
Executive Officer and the Secretary/Treasurer of UnionBancorp, Inc.,
respectively, who duly signed the foregoing instrument before me and
acknowledged that such signing is his respective act and deed, that such
instrument as executed is the act and deed of said corporation and that the
facts stated therein are true.
GIVEN under my hand on _______________, 1996.
___________________________________
Notary Public
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