STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The undersigned, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That the certificate of incorporation of the corporation, University
Bancorp, Inc., article FOURTH, authorized the board of directors of the
corporation to designate and issue in one or more series up to 500,000 shares of
Preferred Stock.
SECOND: That at a meeting of the Board of Directors of University Bancorp, Inc.,
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that, pursuant to the authority expressly granted to and
vested in the board of directors of the Corporation by the provisions
of its Certificate of Incorporation, the Board hereby creates a series
of Preferred Stock of the Corporation to consist of 175,000 of the
500,000 shares of Preferred Stock, par value $.001 per share, which the
Corporation now has authority to issue and the board of directors of
the Corporation hereby fixes the designation, powers, preferences and
relative, participating, optional and other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of
such series of Preferred Stock (in addition to the designation, powers,
preferences and relative, participating, optional and other special
rights, and the qualifications, limitations or restrictions thereof,
set forth in the Certificate of Incorporation, as amended, of the
Corporation which are applicable to Preferred Stock of all series) as
follows in Appendix A.
THIRD: That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed
this 22nd day of April, 2005.
UNIVERSITY BANCORP, INC.
By: /s/Stephen Lange Ranzini
__________________________
Name: Stephen Lange Ranzini
Title: President & CEO
Appendix A
Certificate of the Powers, Designations,
Preferences and Relative, Participating,
Optional and Other Special Rights of the
SERIES 4 9% CUMULATIVE SEVEN YEAR PAY-IN-KIND PREFERRED STOCK
OF
UNIVERSITY BANCORP, INC.
and the Qualifications, Limitations or
Restrictions Thereof, Which Have Not Been Set Forth in the
Certificate of Incorporation in or Any Amendment Thereto.
(Pursuant to Section 151 of Chapter 1
of Title 8 of the Delaware Code)
That pursuant to authority conferred upon the board of directors of the
Corporation by the Certificate of Incorporation, as amended, and pursuant to the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the board of directors of the Corporation, at a duly called meeting
thereof duly held on April 22, 2005, duly adopted the following resolution:
"RESOLVED, that, pursuant to the authority expressly granted to
and vested in the board of directors of the Corporation by the provisions of its
Certificate of Incorporation, the Board hereby creates a series of Preferred
Stock of the Corporation to consist of 175,000 of the 500,000 shares of
Preferred Stock, par value $.001 per share, which the Corporation now has
authority to issue and the board of directors of the Corporation hereby fixes
the designation, powers, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations or restrictions
thereof, of the shares of such series of Preferred Stock (in addition to the
designation, powers, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions thereof, set
forth in the Certificate of Incorporation, as amended, of the Corporation which
are applicable to Preferred Stock of all series) as follows:
1. Designation and Number.
The distinctive designation of the series shall be Series 4 9% Cumulative
Seven Year Pay-In-Kind Preferred Stock (hereinafter, "Series 4 Preferred
Stock"); the number of shares of Series 4 Preferred Stock which the Corporation
is authorized to issue shall be 175,000, which number may be increased (but not
in excess of the total number of authorized shares of Preferred Stock at such
time) or decreased (but not below the number of shares then outstanding) from
time to time by the board of directors of the Corporation (the "Board").
2. Definitions. For purposes hereof, the following terms shall have the meanings
indicated.
(a) The term "Senior Stock" means all those classes and series of preferred
or special stock and all those series of Preferred Stock which, by the terms of
the Certificate of Incorporation (as the same has heretofore been or may
hereafter be amended), or of the instrument by which the Board, acting pursuant
to authority granted in the Certificate of Incorporation (as the same has
heretofore been or may hereafter be amended), shall designate the special rights
and limitations of each such class and series of preferred or special stock or
series of Preferred Stock, shall be senior to the Series 4 Preferred Stock with
respect to the right of the holders thereof to receive dividends or to
participate in the assets of the Corporation distributable to stockholders upon
any liquidation, dissolution
or winding-up of the Corporation.
(b) the term "Parity Stock" means: all those classes and series of
preferred or special stock and all those series of Preferred Stock which, by the
terms of the Certificate of Incorporation (as the same has heretofore been or
may hereafter be amended), or of the instrument by which the Board, acting
pursuant to authority granted in the Certificate of Incorporation (as the same
has heretofore been or may hereafter be amended), shall designate the special
rights and limitations of each such class and series of preferred or special
stock or series of Preferred Stock, shall be on a parity with the Series 4
Preferred Stock with respect to the right of the holders thereof to receive
dividends and to participate in the assets of the Corporation distributable to
stockholders upon any liquidation, dissolution or winding-up of the Corporation.
(c) The term "Junior Stock" means:
(i) Common Stock, par value $.01, of the Corporation, and
(ii) all those classes and series of preferred, special or common
stock and all those series of Preferred Stock which, by the terms of the
Certificate of Incorporation (as the same has heretofore been or may hereafter
be amended), or of the instrument by which the Board, acting pursuant to
authority granted in the Certificate of Incorporation (as the same has
heretofore been or may hereafter be amended), shall designate the special rights
and limitations of each such class and series of preferred or special stock or
series of Preferred Stock, shall be, subordinate to the Series 4 Preferred Stock
with respect to the right of the holders thereof to receive dividends and to
participate in the assets of the Corporation distributable to stockholders upon
any liquidation, dissolution or, winding-up of the Corporation.
3. Dividends and Distributions.
(a) Subject to the prior rights of the holders of Senior Stock and in
conjunction with any provision then being made for the holders of Parity Stock,
the holders of shares of Series 4 Preferred Stock, in preference to the holders
of Junior Stock,
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends payable in
either:
* cash; or
* in additional shares of Series 4 Preferred Stock valued at $10 per
share ("In Kind Issuance"); or
* any combination of cash and In Kind Issuance
on the thirtieth (30th) day of January and July in each year (each such date
being referred to herein as a "Semi-Annual Dividend Payment Date"), commencing
on the first Semi-Annual Dividend Payment Date after the first issuance of
shares of Series 4 Preferred Stock, at, but not exceeding, the annual rate of
$90.00 per share.
(b) Dividends shall accrue on a day-to-day basis and be cumulative on
issued and outstanding shares of Series 4 Preferred Stock, whether or not
declared, beginning from the date of issue of such shares. Accrued but unpaid
dividends shall not bear interest. If the stated dividends on the shares of
Series 4 Preferred Stock are not paid in full, shares of Series 4 Preferred
Stock and all shares of Parity Stock shall share ratably in the payment of
dividends, including accumulations thereof, if any, on such shares in accordance
with the sums which would be payable on such shares if all dividends then
accrued but unpaid thereon were paid in full.
(c) So long as any shares of Series 4 Preferred Stock are issued and
outstanding:
(i) no dividends whatever shall be paid or declared, nor shall any
distribution be made, on any Junior Stock, other than a dividend or distribution
payable in Junior Stock or warrants or other rights to purchase Junior Stock,
unless all dividends on Series 4 Preferred Stock for all past semi-annual
dividend periods shall have been paid or declared and a sum sufficient for the
payment thereof set apart; and
(ii) no dividends shall be paid or declared, nor shall any
distribution be made on any Parity Stock (other than dividends or distribution
of Junior Stock or of rights, warrants or options to acquire Junior Stock),
except dividends or distributions paid ratably on the Series 4 Preferred Stock
and all such Parity Stock on which dividends are payable and in arrears in
proportion to the total amounts to which the holders of all such shares would
then be entitled.
Nothing contained in this section 3 shall prohibit the Corporation from
redeeming, purchasing, or otherwise acquiring any then outstanding shares of
Junior Stock or Parity Stock at any time or from time to time.
(d) The Board may fix a record date for the determination of holders of
shares of Series 4 Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof. Absent the setting of any such
record date, each dividend shall be paid to the holders of record of the Series
4 Preferred Stock as their names appear on
the stock books of the Corporation on the business day next preceding the
Semi-Annual Dividend Payment Date thereof. Dividends in arrears for any past
Semi-Annual Dividend Payment Date(s) may be declared and paid at any time,
without reference to any regular Semi-Annual Dividend Payment Date, to the
holders of record of the Series 4 Preferred Stock as their names appear on the
stock books of the Corporation on such date, not exceeding 15 days preceding the
payment date thereof, as may be fixed by the Board.
4. No Voting Rights.
(a) Notwithstanding anything to the Contrary contained in this Certificate,
the Certificate of Incorporation or otherwise, the shares of Series 4 Preferred
Stock shall not entitle the holders thereof to vote on any matter whatsoever,
except as required by the General Corporation Law of the State of Delaware.
Moreover, in no event shall the vote or consent of the holders of shares of
Series 4 Preferred Stock be required in connection with the creation or
authorization of any one or more classes or series of preferred or special stock
(including the Preferred Stock), whether constituting Junior Stock, Parity Stock
or Senior Stock.
(b) The number of authorized shares of any class or classes, or any series,
of stock of the Corporation (including without limitation the Preferred Stock
and the Series 4 Preferred Stock) may be increased or decreased (but not below
the number of shares of such class or classes or such series then outstanding)
by the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote, irrespective of class or serial designation (and
without any requirement of a separate affirmative vote or consent of the holders
of the shares of Series 4 Preferred Stock voting separately as a class or
series).
5. Reacquired Shares. Any shares of Series 4 Preferred Stock redeemed, purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
deemed retired and cancelled upon the acquisition thereof, and all such shares,
upon their cancellation, shall become and return to the status of authorized but
unissued shares of Preferred Stock without serial designation and which may be
reissued as part of any new or then existing series of Preferred Stock.
6. Liquidation. The Series 4 Preferred Stock shall be preferred as to assets
over the Junior Stock so that, in the event of the voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the holders of Series
4 Preferred Stock shall be entitled, in conjunction with any provision then
being made for the holders of Parity Stock, to have set apart for them or to be
paid out of the assets of the Corporation, after provision for the holders of
Senior Stock, if any, but before any distribution is made to or set apart for
the holders of Junior Stock, an amount in cash equal to, and in no event more
than, $10.00 per share of Series 4 Preferred Stock plus a sum of money equal to
all dividends accrued and unpaid thereon to the date that payment is made
available to the holders of Series 4 Preferred Stock. If, upon such liquidation,
dissolution or winding-up of the Corporation, the assets of the Corporation
available for distribution to the holders
of its stock shall, after provision for the holders of Senior Stock, if any, be
insufficient to permit the distribution in full of the amounts receivable as
aforesaid by the holders of Series 4 Preferred Stock and the amounts receivable
by the holders of all Parity Stock, then all such assets of the Corporation
shall be distributed ratably among the holders of Series 4 Preferred Stock and
the holders of all Parity Stock, in proportion to the amounts which each would
have been entitled to receive if such assets were sufficient to permit
distribution in full as aforesaid. Neither the consolidation nor merger of the
Corporation nor the sale, lease or transfer by the Corporation of all or any
part of its assets shall be deemed to be a liquidation, dissolution or
winding-up of the Corporation for the purposes of this section 6.
7. Redemption.
(a) Subject to the provisions of section 7(b) hereof, the Corporation may
(but shall in no event other than pursuant to section 7(c) hereof be required
to), by action of the Board, at any time, and from time to time, redeem all or
part of the issued and outstanding Series 4 Preferred Stock by paying the
holders of record thereof, out of funds legally available therefor, the sum of
(i) $10.00 for each such share to be redeemed plus (ii) an amount in cash equal
to all dividends accrued but not paid on each such share to be redeemed to the
date of redemption.
(b) Prior to the fifth anniversary of the date of original issuance of
shares of Series 4 Preferred Stock, the Corporation may not redeem any of the
Series 4 Preferred Stock pursuant to this section 7.
(c) The Corporation shall redeem all shares of Series 4 Preferred Stock no
later than the seventh anniversary of their issuance.
(d) In the event that less than all of the issued and outstanding Series
Preferred Stock are to be redeemed, the shares to be redeemed shall be chosen by
lot, pro rata, or by such other method as the Board may determine to be
equitable.
(e) In the event of a redemption of shares of Series 4 Preferred Stock, a
notice fixing the time and place of redemption (and if less than all shares of
Series 4 Preferred Stock are to be redeemed, identifying the shares to be
redeemed) shall be mailed not less than ten (10) days nor more than sixty (60)
days prior to the date so fixed to each holder of record of the Series 4
Preferred Stock to be redeemed at the address thereof as it appears on the
records of the Corporation. No failure to mail any such notice or any defect
therein or in the mailing thereof shall affect the validity of the proceedings
for such redemption.
(f) From and after the date fixed for such redemption, unless the
Corporation shall default in providing moneys for the payment of the redemption
price, the holders of the shares so called for redemption shall not be entitled
to any dividends and shall cease to have any rights or interests as holders of
said shares, except the right to receive the payment herein designated, without
interest thereon, upon presentation and surrender of their certificates
therefor.
(g) From and after the date specified for redemption, the Corporation
shall, at the place specified in the notice of redemption, upon presentation and
surrender to the Corporation by the holder thereof of the certificate(s)
representing the shares of Series 4 Preferred Stock redeemed, deliver or cause
to be delivered to or upon the written order of such holder a sum in cash equal
to the redemption price of the shares of such holder to be redeemed, together
with, if the certificate(s) presented and surrendered by such Holder represent a
greater number of shares than the number of shares to be redeemed from such
holder, one or more new certificates registered in the name of such holder and
representing the shares of Series 4 Preferred Stock not redeemed.
8. Miscellaneous.
(a) All accounting terms used herein and not expressly defined herein shall
have the meaning given to them in accordance with generally accepted accounting
principles.
(b) The term "outstanding", when used herein with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
direct or indirect subsidiary thereof.
(c) The term "person" when used herein shall mean any corporation,
partnership, trust, organization, association or other entity or individual.
(d) Nothing contained herein shall prevent the creation, authorization or
issuance, either by or pursuant to authority granted in the Certificate of
Incorporation (as the same may hereafter be amended), of any one or more classes
or series of preferred or special stock (including the Preferred Stock), whether
ranking prior to or on a parity with or junior to the Series 4 Preferred Stock
as to dividends or in liquidation and/or having or carrying any powers,
preferences and relative, participating, optional and other special rights
authorized by law and the Certificate of Incorporation (as the same may
hereafter be amended).
(e) The headings of the sections and paragraphs of this resolution are for
convenience of reference only and shall not define, limit or affect any of the
provisions hereof."