EX-4 2 exhibit44.htm exhibit44
 
Table
 
of Contents
 
Exhibit 4.4
DESCRIPTION OF USCB FINANCIAL HOLDINGS, INC.’S
 
SECURITIES
As of December 31, 2021, USCB Financial Holdings, Inc. (the “Company”) has one class of securities registered under
Section 12
 
of the
 
Securities Exchange
 
Act of
 
1934, as
 
amended, namely
 
its Class
 
A common
 
stock, $1.00
 
par value
 
per
share (“Class A Common
 
Stock”). The following
 
summary of the Class
 
A Common Stock
 
is based on
 
and qualified by
 
the
Company’s Articles
 
of Incorporation
 
(the “Articles
 
of Incorporation”),
 
the Company’s
 
Amended and
 
Restated Bylaws
 
(the
“Bylaws”)
 
and
 
the
 
Side
 
Letter
 
Agreement
 
(the
 
“Side
 
Letter
 
Agreement”)
 
by
 
and
 
between
 
the
 
Company
 
and
 
the
 
Large
Investors (as
 
defined herein).
 
For a
 
complete description
 
of the
 
terms and
 
provisions of
 
the Company’s
 
equity securities,
including its
 
common stock,
 
refer to
 
the Articles
 
of Incorporation,
 
the Bylaws
 
and the
 
Side Letter
 
Agreement, all
 
of which
are filed as exhibits to this Annual Report on Form 10-K.
General
The Articles
 
of Incorporation
 
authorize a
 
total of
 
68,600,000 shares of
 
capital stock,
 
$1.00 par
 
value per
 
share, consisting
of (a) 53,000,000 shares of
 
common stock, 45,000,000 of
 
which are designated Class
 
A Common Stock and 8,000,000
 
of
which are
 
designated Class
 
B Non-Voting Common
 
Stock, par
 
value $1.00
 
per share
 
(“Class B
 
Common Stock” and
 
together
with the Class A Common Stock,
 
the “Common Stock”), and (b) 15,600,000
 
shares of preferred stock, $1.00 par
 
value per
share.
Voting Rights
The Class A Common Stock
 
has voting rights, and Class
 
B Common Stock does not
 
have voting rights except in
 
limited
circumstances. Holders
 
of Class
 
A Common
 
Stock are
 
entitled to
 
one vote
 
per share
 
on all
 
matters on
 
which the
 
holders
are entitled to vote,
 
except in the case of
 
amendments to the Articles of
 
Incorporation where such amendment relates solely
to
 
Class
 
B
 
Common
 
Stock
 
or
 
any
 
other
 
series
 
of
 
the
 
Company’s
 
preferred
 
stock.
 
The
 
Company
 
does
 
not
 
have
 
any
cumulative
 
votes
 
in
 
the
 
election
 
of
 
directors.
 
Under
 
the
 
Bylaws,
 
unless
 
otherwise
 
provided
 
by
 
law
 
or
 
the
 
Articles
 
of
Incorporation, the
 
holders of
 
a majority
 
of shares
 
issued, outstanding,
 
and entitled
 
to vote,
 
present in
 
person or
 
by proxy,
will
 
constitute
 
a
 
quorum
 
to
 
transact
 
business,
 
including
 
the
 
election
 
of
 
directors,
 
except
 
that
 
when
 
a
 
specified
 
item
 
of
business is required to be voted on by one or more designated classes or series of capital
 
stock, a majority of the shares of
each such
 
class or
 
series will
 
constitute a
 
quorum. Once
 
a quorum
 
is present,
 
except as
 
otherwise provided
 
by law,
 
the
Articles of Incorporation,
 
the Bylaws or
 
in respect of the
 
election of directors,
 
all matters to be
 
voted on by the
 
Company’s
shareholders must be approved by
 
a majority of shares constituting a
 
quorum, and where a separate
 
vote by class or
 
series
is required, a majority of the votes represented
 
by the shares of the shareholders of such
 
class or series present in person
or by proxy and entitled to
 
vote shall be the act of such
 
class or series. The affirmative
 
vote of the holders representing
 
66
2/3% of the then outstanding shares of Class
 
A Common Stock is required to amend, alter or
 
repeal, or adopt any provision
as part of the Articles
 
of Incorporation that is inconsistent with the purpose
 
and intent of certain designated provisions of
 
the
Articles
 
of
 
Incorporation
 
and
 
the
 
Bylaws
 
including,
 
among
 
others,
 
perpetual
 
term,
 
management
 
of
 
the
 
Company,
indemnification, transfer restrictions, board powers and number
 
of directors.
The holders of Class
 
B Common Stock have
 
limited voting rights. In
 
addition to any voting
 
rights that may
 
be required
under
 
Florida
 
law,
 
the
 
consent
 
of
 
holders
 
of
 
Class
 
B
 
Common
 
Stock
 
representing
 
a
 
majority
 
of
 
the
 
shares
 
of
 
Class
 
B
Common Stock present in person
 
or by proxy and entitled
 
to vote, voting as a separate
 
class, is required to (a)
 
amend the
Articles of
 
Incorporation in
 
a manner
 
that would
 
significantly and
 
adversely affect
 
the rights
 
of the
 
holders of
 
the Class
 
B
Common
 
Stock
 
in
 
a
 
manner
 
that
 
is
 
different
 
from
 
the
 
effect
 
of
 
such
 
amendment
 
on
 
the
 
Class
 
A
 
Common
 
Stock
 
or
 
(b)
liquidate, dissolve or wind-up the Company.
Dividends
Holders of
 
Common Stock are
 
entitled to
 
receive such dividends
 
as may
 
from time
 
to time be
 
declared by the
 
Company’s
Board of
 
Directors (the
 
“Board”) out
 
of funds
 
legally available
 
for such
 
purposes. The
 
Company can
 
pay dividends
 
on its
Common Stock only if it
 
has paid or provided for
 
the payment of all dividends,
 
if any, to which holders of its
 
then outstanding
preferred stock, are entitled. The Company’s ability to
 
pay dividends is also subject to applicable federal and state
 
banking
laws.
Liquidation
In the event of
 
the liquidation, dissolution
 
or winding-up of
 
the Company,
 
holders of both
 
Class A Common
 
Stock and
Class B Common Stock are entitled to share equally and ratably in our assets, if any, remaining after the payment of all the
Company’s debts
 
and liabilities,
 
and the
 
satisfaction of
 
the liquidation
 
preferences of
 
the holders
 
of any
 
then outstanding
classes or series of preferred stock.
 
Table
 
of Contents
 
Preemptive Rights, Redemption or Other Rights
Pursuant to
 
the Articles
 
of Incorporation
 
and the
 
Bylaws, holders
 
of Common
 
Stock do
 
not have
 
preemptive rights
 
or
other rights to purchase,
 
subscribe for or take
 
any part of any
 
shares of the Company’s
 
capital stock. The Large
 
Investors
(as defined herein), however, have certain contractual preemptive rights pursuant
 
to the Side Letter Agreement. In
 
addition,
the
 
Company
 
does
 
not
 
have
 
any
 
sinking
 
fund
 
or
 
redemption
 
provisions
 
in
 
the
 
Articles
 
of
 
Incorporation
 
or
 
the
 
Bylaws
applicable to its Common Stock.
Conversion
The
 
Class
 
A
 
Common
 
Stock
 
does
 
not
 
have
 
any
 
conversion
 
rights.
 
Pursuant
 
to
 
the
 
Articles
 
of
 
Incorporation,
 
the
Company’s shares of
 
Class B Common
 
Stock may only
 
be transferred (a) to
 
an affiliate of
 
the holder of
 
Class B Common
Stock, (b) to the Company, (c) pursuant to a widespread public distribution of the Common Stock (including a transfer to an
underwriter for the purpose
 
of conducting a widespread
 
public distribution or pursuant
 
to Rule 144 under
 
the Securities Act),
(d) if no transferee or
 
group of associated transferees would receive 2%
 
or more of any
 
class of capital stock entitled
 
to vote
generally in the election
 
of directors of the
 
Company or (e)
 
to a transferee that would
 
control more than 50%
 
of the capital
stock
 
entitled
 
to
 
vote
 
generally
 
in
 
the
 
election
 
of
 
directors
 
of
 
the
 
Company
 
without
 
any
 
transfer
 
from
 
the
 
transferor.
Immediately following
 
a transfer
 
of the
 
type described
 
in (c),
 
(d) or
 
(e) in
 
the preceding
 
sentence, each
 
share of
 
Class B
Common Stock so transferred is automatically
 
converted into 0.2 shares of Class A Common
 
Stock (subject to adjustment
as provided in the Articles
 
of Incorporation). The Company must at all
 
times reserve and keep available out
 
of its authorized
and unissued
 
shares of
 
Class A
 
Common Stock
 
such number
 
of shares
 
of Class
 
A Common
 
Stock that
 
may be
 
issuable
upon conversion of all of the outstanding shares of Class
 
B Common Stock.
Stockholder Meetings
Except as
 
otherwise provided
 
by law,
 
the Board,
 
or any
 
one or more
 
shareholders owning,
 
in the aggregate,
 
not less
than ten percent of the issued and
 
outstanding Class A Common Stock,
 
may call a special meeting of shareholders
 
at any
time for any purpose not inconsistent with the Articles
 
of Incorporation or the Bylaws.
Director Removal
Subject to the
 
rights of holders
 
of any class
 
or series of
 
preferred stock with
 
respect to the
 
election of directors,
 
a director
may be removed from office by the affirmative vote of holders of
 
shares of capital stock issued and outstanding and entitled
to vote in an election of directors representing
 
at least a majority of the votes entitled
 
to be cast thereon, and then,
 
only for
cause.
Anti-takeover Effects
Certain provisions of the Articles
 
of Incorporation, the Bylaws,
 
Florida and U.S. banking
 
laws to which the Company
 
is
subject may
 
have anti-takeover effects
 
and may
 
delay, defer, or prevent a
 
tender offer or
 
takeover attempt that
 
a shareholder
might consider
 
to be
 
in such
 
shareholder’s best
 
interest, including
 
those attempts
 
that might
 
result in a
 
premium over
 
the
market price
 
for the
 
shares
 
held by
 
shareholders,
 
and
 
may make
 
removal
 
of management
 
more difficult.
 
The Articles
 
of
Incorporation and Bylaws include provisions that:
•
 
empower the Board, without
 
shareholder approval, to issue
 
preferred stock, the terms
 
of which, including voting
power, are to be set by the
 
Board;
•
 
provide that directors
 
may be removed
 
from office
 
only for cause
 
and only upon
 
a majority vote
 
of the shares
of capital stock entitled to vote in an election of directors;
•
 
prohibit holders
 
of Class
 
A Common
 
Stock from
 
taking action
 
by written
 
consent in
 
lieu of
 
a shareholder
 
meeting;
 
•
 
require holders of at least 10% of the Company’s Class
 
A Common Stock in order to call a special meeting;
•
 
do not provide for cumulative voting in elections of Company
 
directors;
•
 
provide that the Board has the authority to amend the Bylaws;
•
 
require
 
shareholders
 
that
 
wish
 
to
 
bring
 
business
 
before
 
annual
 
or
 
special
 
meetings
 
of
 
shareholders,
 
or
 
to
nominate candidates for election as directors
 
at an annual meeting of shareholders,
 
to provide timely notice of
their intent in writing and satisfy disclosure requirements;
 
and
•
 
enable the Board to increase, between annual
 
meetings, the number of persons serving as
 
directors and to fill
the vacancies
 
created as
 
a result
 
of the
 
increase until
 
the next
 
meeting of
 
shareholders by
 
a majority
 
vote of
the directors present at a meeting of directors.
Additionally,
 
the Articles
 
of Incorporation
 
prohibit any
 
direct or
 
indirect transfer
 
of stock
 
or options
 
to acquire
 
stock to
any
 
person
 
who,
 
as
 
a
 
result
 
of
 
the
 
transfer,
 
would
 
own
 
4.95%
 
or
 
more
 
of
 
the
 
Company’s
 
capital
 
stock,
 
as
 
long
 
as
 
the
 
Table
 
of Contents
 
Company continues to have “deferred tax assets,” subject to limited exceptions as provided in the Articles of Incorporation.
Also,
 
certain
 
provisions
 
of
 
Florida
 
law
 
may
 
delay,
 
discourage,
 
or
 
prevent
 
an
 
attempted
 
acquisition
 
or change
 
in control.
Furthermore, banking laws impose
 
notice, approval, and ongoing
 
regulatory requirements on any
 
shareholder or other party
that seeks to acquire direct or indirect “control” of a bank holding company,
 
which includes the Change in Bank Control Act
and the Bank Holding Company Act.
Preferred Stock
The Board is authorized,
 
without shareholder approval
 
and subject to any
 
limitations prescribed by
 
law, the
 
Articles of
Incorporation and the Bylaws, at
 
any time or from
 
time to time to
 
(a) provide for the
 
issuance of the shares
 
of preferred stock
in one
 
or more classes
 
or series,
 
(b) determine the
 
designation for any
 
such classes or
 
series of preferred
 
stock, (c) establish
the
 
number
 
of
 
shares
 
to
 
be
 
included
 
in
 
any
 
such
 
class
 
or
 
series,
 
and
 
(d)
 
determine
 
the
 
terms,
 
powers,
 
preferences,
qualifications, limitations, restrictions
 
and relative, participating,
 
optional or other
 
special rights of the
 
shares of such
 
class
or series of
 
preferred stock, which include rights
 
such as those with
 
respect to dividends, liquidation preference, conversion,
redemption, and/or voting.
Any issuance of
 
preferred stock
 
with voting rights
 
or which is
 
convertible into voting
 
shares could
 
adversely affect
 
the
voting power of the holders of Class A Common Stock.
 
Any of aforementioned actions could have an anti-takeover
 
effect.
Side Letter Agreement
Pursuant to
 
the Side
 
Letter Agreement
 
between the
 
Company,
 
Priam Capital
 
Fund II,
 
LP (“Priam”),
 
Patriot Financial
Partners II,
 
L.P.
 
(“Patriot
 
Financial”)
 
and
 
Patriot Financial
 
Partners Parallel
 
II,
 
L.P.
 
(“Patriot
 
Financial
 
Partners,”
 
together
with Patriot Financial and Priam, the “Large
 
Investors”), the Company is required
 
to maintain its Board at no less than five
nor more than
 
seven directors,
 
and to cause
 
one person
 
nominated by
 
each Large Investor
 
to be elected
 
or appointed
 
to
the Board,
 
including filling
 
any vacancy
 
(the “Board
 
Representative”),
 
subject
 
to
 
satisfaction
 
of all
 
legal and
 
governance
requirements regarding
 
such Board Representative’s
 
service as a
 
director.
 
Such Board Representative
 
rights last as
 
long
as each Large Investor
 
beneficially owns shares of
 
the Common Stock representing
 
50% or more of
 
the common stock
 
of
the Bank (as defined
 
below) purchased by the
 
Large Investor in the
 
recapitalization of U.S.
 
Century Bank, the
 
Company’s
wholly-owned Florida state-chartered
 
bank subsidiary (the “Bank”),
 
in 2015 (the “2015 Recapitalization”),
 
as adjusted from
time to time
 
as a result
 
of changes in
 
capitalization. Pursuant
 
to the Side
 
Letter Agreement,
 
the Large Investors
 
have the
power
 
to
 
designate
 
a
 
Board
 
observer
 
to
 
attend
 
meetings
 
in
 
a
 
nonvoting
 
capacity
 
in
 
the
 
event
 
any
 
applicable
 
Board
Representative is
 
unable to
 
attend such
 
meetings or
 
if the
 
Large Investor
 
does not
 
have a
 
Board Representative
 
on the
Board on the date of any meeting.
 
The Side Letter Agreement provides each Large Investor with matching stock rights for
 
so long as each Large Investor
beneficially owns shares of
 
Common Stock representing
 
50% or more of the
 
common stock of the
 
Bank purchased by the
Large
 
Investor
 
in
 
the
 
2015
 
Recapitalization,
 
as
 
adjusted
 
from
 
time
 
to
 
time
 
as
 
a
 
result
 
of
 
changes
 
in
 
capitalization.
 
The
matching stock rights
 
permit each Large
 
Investor to purchase
 
new equity securities
 
offered by the
 
Company for the
 
same
price
 
and
 
on
 
the
 
same
 
terms
 
as
 
such
 
securities
 
are
 
proposed
 
to
 
be
 
offered
 
to
 
others,
 
subject
 
to
 
specified
 
exceptions,
procedural requirements
 
and compliance
 
with applicable
 
bank regulatory
 
ownership requirements
 
as further
 
described in
the Side Letter Agreement. The Side Letter Agreement
 
also provides customary information rights to the
 
Large Investors.
Listing
Our Class A common stock is listed on The Nasdaq Global
 
Market under ticker symbol “USCB”.
Transfer Agent and Registrar
The transfer agent and registrar for our Common Stock
 
is Computershare Trust Company,
 
N.A.