Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CITIZENS REPUBLIC BANCORP, INC.
ARTICLES OF INCORPORATION
OF
CITIZENS REPUBLIC BANCORP, INC.
The
present name of the Corporation is Citizens Republic Bancorp, Inc.
(CID No. 031-208). The previous name of the
Corporation was Citizens Banking Corporation. The original Articles of Incorporation of the
Corporation were filed on November 10, 1980. These Amended and Restated Articles of Incorporation
were duly adopted by the directors and the shareholders in accordance with Sections 641 and
642 of the Business Corporation Act of Michigan.
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation executes
the following Articles:
ARTICLE I
The name of the Corporation is CITIZENS REPUBLIC BANCORP, INC.
ARTICLE II
The purpose or purposes for which the Corporation is organized is to engage in any activity within
the purposes for which a Corporation may be organized under the Business Corporation Act of
Michigan, and specifically, but not in limitation of the foregoing, to be a bank holding company
under the Bank Holding Company Act of 1956, as amended, and to engage in, or acquire an interest in
other companies which engage in, activities closely related to banking as such activities are
defined by the Board of Governors of the Federal Reserve System.
ARTICLE III
The total authorized capital stock is:
Common shares 100,000,000 No Par Value
Preferred shares 5,000,000 No Par Value
Preferred shares 5,000,000 No Par Value
ARTICLE IV
(A) A statement of all or any of the relative rights, preferences and limitations of the common
shares is as follows:
(1) Any distribution of profits of the Corporation voted by the directors as dividends payable in
cash, or in shares of the Corporation, or in other securities of the Corporation or in other
securities, shall be distributed to the shareholders in proportion to their ownership of the shares
of the Corporation.
(2) Each shareholder shall have one vote per share in elections of directors and on any other
matters properly coming up at shareholders’ meetings for action by shareholders.
(3) Voting in elections of directors shall not be cumulative.
(4) Shareholders shall not have preemptive rights to subscribe for or purchase any authorized but
unissued shares of the Corporation or any other securities or rights to be issued by the
Corporation.
(5) In the event of liquidation of the assets of the Corporation after payment of all of its debts,
the remainder of such assets shall be distributed to the shareholders in proportion to their
ownership of the shares of the Corporation.
(B) The relative rights, preferences and limitations of the preferred shares shall be determined as
follows:
The board of directors is empowered to determine the stated value per share thereof and to divide
and redivide said preferred shares into classes and series and to designate and redesignate the
rights, preferences and limitations of each class or series.
ARTICLE V
The
address of the registered office is:
328 S.
Saginaw Street
Flint, Michigan 48502
Flint, Michigan 48502
The name of the initial resident agent at the registered office
is:
Thomas W.
Gallagher
ARTICLE VI
The business and affairs of the Corporation shall be managed by or under the direction of a board
of directors consisting of not less than ten nor more than twenty-five directors, the exact number
of directors to be determined from time to time by resolution adopted by affirmative vote of a
majority of the board of directors elected and serving. At the 2009 annual meeting of stockholders,
the successors of the directors whose terms expire at that meeting shall be elected for a term
expiring at the 2010 annual meeting of stockholders and shall hold office until the next succeeding
annual meeting and until his or her successor shall be elected and shall qualify, but subject to
prior death, resignation, retirement, disqualification or removal from office; at the 2010 annual
meeting of stockholders, the successors of the directors whose terms expire at that meeting shall
be elected for a term expiring at the 2011 annual meeting of stockholders and shall hold office
until the next succeeding annual meeting and until his or her successor shall be elected and shall
qualify, but subject to prior death, resignation, retirement, disqualification or removal from
office; and at each annual meeting of stockholders thereafter, the directors shall be elected for
terms expiring at the next annual meeting of stockholders and shall hold office until the next
succeeding annual meeting and until his or her successor shall be elected and shall qualify, but
subject to prior death, resignation, retirement, disqualification or removal from office. Any
vacancy on the board of directors that results from an increase in the number of directors may be
filled by a majority of the board of directors elected and serving, and any other vacancy occurring
in the board of directors may be filled by a majority of the directors elected and serving,
although less than a quorum, or by a sole remaining director. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall have the same remaining
term as that of his predecessor. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of preferred stock issued by the corporation shall have the right, voting
separately by class or series, to elect directors at an annual or special meeting of stockholders,
the election, term of office, filling of vacancies and other features of such directorships shall
be governed by the terms of these articles of incorporation applicable thereto, and such directors
so elected shall not be divided into classes pursuant to this article VI unless expressly provided
by such terms.
Except as otherwise provided in these Articles, directors shall be elected by a majority of the
votes cast at an election as specified in greater detail in the bylaws of the Corporation.
ARTICLE VII
The directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of
the Corporation not inconsistent with the provisions of these articles of incorporation. The
affirmative vote of the holders of not less than two thirds of the outstanding shares of capital
stock of the Corporation entitled to vote shall be required for the approval and adoption of any
amendment, alteration, change, addition to or repeal of article II, section 3 of the bylaws of the
Corporation proposed by any shareholder of the Corporation.
Any amendment, change or repeal of this article VII, or any other amendment of these articles of
incorporation which will have the effect of modifying or permitting circumvention of this article
VII, shall require the favorable vote, at a meeting of the shareholders of the Corporation, of the
holders of at least two thirds of the then outstanding shares of capital stock of the Corporation
entitled to vote; provided, however, that such two thirds vote shall not be required for any such
amendment, change or repeal recommended to shareholders by the affirmative vote of not less than
three-fourths of the board of directors, and such amendment, change, or repeal so recommended shall
require only the vote, if any, required under the applicable provision of the Business Corporation
Act of Michigan.
ARTICLE VIII
Any action required or permitted to be taken at any annual or special meeting of shareholders of
the Corporation, may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the holders of not less
than two thirds of the outstanding shares of capital stock of the Corporation entitled to vote. Any
amendment, change or repeal of this article VIII, or any other amendment of these articles of
incorporation which will have the effect of modifying or permitting circumvention of this article
VIII, shall require the favorable vote, at a meeting of the shareholders of the Corporation, of the
holders of at least two thirds of the then outstanding shares of capital stock of the Corporation
entitled to vote; provided, however, that such two thirds vote shall not be required for, any such
amendment, change or repeal recommended to shareholders by the affirmative vote of not less than
three-fourths of the board of directors elected and serving, and such amendment, change, or repeal
so recommended shall require only the vote, if any, required under the applicable provision of the
Business Corporation Act of Michigan.
ARTICLE IX
(a) No director of the Corporation shall be personally liable to the Corporation or to its
shareholders for monetary damages for breach of the director’s fiduciary duty except for liability
(i) for a breach of the director’s duty of loyalty to the Corporation or its shareholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) for a violation of Section 551(1) of the Business Corporation Act of Michigan; (iv)
for a transaction from which the director derived an improper personal benefit, or (v) for an act
or omission occurring before March 1, 1987.
(b) The indemnification or advancement of expenses provided by law is not exclusive of other rights
to which a person seeking indemnification or advancement of expenses may be entitled under these
articles of incorporation, the bylaws of the Corporation or a contractual agreement.
These
Amended and Restated Articles of Incorporation were duly adopted by
the Board of Directors without a vote of the shareholders. These
Amended and Restated Articles of Incorporation only restate and
integrate and do not further amend the provisions of the Articles of
Incorporation as heretofore amended and there is no material
discrepancy between these provisions and the provisions of these
Amended and Restated Articles of Incorporation.
Signed
this 29 thday of April, 2008.
| By: | /s/ Thomas W. Gallagher | |||||
| (Signature of an authorized officer or agent) | ||||||
| Thomas W. Gallagher | ||||||
| General Counsel and | ||||||
| Secretary | ||||||
| (Type or Print Name) | ||||||
| Name of person or organization remitting fees: | Preparer’s name and business telephone number: | |||||
| Dykema Gossett PLLC | Mark A. Metz, Esq. | |||||
| (313)568-5434 | ||||||
CERTIFICATE OF DESIGNATIONS
OF
CONTINGENT CONVERTIBLE PERPETUAL NON-CUMULATIVE
PREFERRED STOCK, SERIES A
OF
CITIZENS REPUBLIC BANCORP, INC.
Pursuant to Section 302(4) of the
Michigan Business Corporation Act
OF
CONTINGENT CONVERTIBLE PERPETUAL NON-CUMULATIVE
PREFERRED STOCK, SERIES A
OF
CITIZENS REPUBLIC BANCORP, INC.
Pursuant to Section 302(4) of the
Michigan Business Corporation Act
Citizens Republic Bancorp, Inc., a Michigan corporation (the “Corporation”), does
hereby certify that the following resolution was duly adopted by a committee of the Board of
Directors of the Corporation at a meeting duly called and held on June 5, 2008, pursuant to
authority conferred upon such committee by the Board of Directors pursuant to the provisions of the
Amended and Restated Articles of Incorporation, and that the complete text of such resolution is as
follows:
“RESOLVED: That pursuant to the authority vested in the Board of Directors by its Amended and
Restated Articles of Incorporation and delegated to this committee, a series of preferred stock, no
par value, of the Corporation be and hereby is created, and that the determination of the terms and
amount thereof and the voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations or restrictions
thereof are as set forth in the Certificate of Designations attached hereto as Annex A,
which is incorporated herein and made a part of these resolutions by reference, and that the
Amended and Restated Articles of Incorporation of the Corporation be and hereby are amended by
adopting a Certificate of Designations containing the terms and conditions contained in Annex
A hereto.”
[Signature
page follows]
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be duly
executed by the undersigned this 10th day of June, 2008.
| CITIZENS REPUBLIC BANCORP, INC. |
||||
| By: | /s/ Thomas W. Gallagher | |||
| Name: | Thomas W. Gallagher | |||
| Title: | General Counsel & Secretary | |||
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CERTIFICATE OF DESIGNATIONS
OF
CONTINGENT CONVERTIBLE PERPETUAL NON-CUMULATIVE
PREFERRED STOCK, SERIES A
OF
CITIZENS REPUBLIC BANCORP, INC.
OF
CONTINGENT CONVERTIBLE PERPETUAL NON-CUMULATIVE
PREFERRED STOCK, SERIES A
OF
CITIZENS REPUBLIC BANCORP, INC.
There is hereby established a series of preferred stock to which the following provisions
shall be applicable:
Section 1. Designation and Amount. The shares of such series shall be designated as “Contingent
Convertible Perpetual Non-Cumulative Preferred Stock, Series A,” no par value, with a liquidation
preference of $50 per share (or such other amount as may be determined pursuant to Section 5(a))
(the “Preferred Stock”) and the number of shares constituting the Preferred Stock initially
shall be 2,768,791. Subject to Section 4(b), such number of shares may be increased or decreased
by resolution of the Board of Directors (hereinafter called the “Board of Directors” or the
“Board”) of Citizens Republic Bancorp, Inc. (the
“Corporation”); provided, that no
decrease shall reduce the number of shares of Preferred Stock to a number less than the number of
shares then outstanding.
Section 2. Ranking. The Preferred Stock shall rank, as to payment of dividends and distribution of
assets upon dissolution, liquidation or winding up of the Corporation, (a) senior to (i) the Common
Stock and (ii) each other class or series of capital stock issued by the Corporation which by its
terms does not expressly provide that it ranks on a parity with or senior to the Preferred Stock
(collectively, the “Junior Securities”) and (b) pari passu with each class or series of
preferred stock issued by the Corporation the terms of which expressly provide that such class or
series will rank on parity with the Preferred Stock (collectively, the “Parity
Securities”), in each case, whether now outstanding or to be issued in the future.
Section 3. Dividends and Distributions.
(a) From and after the Effective Date, Holders shall be entitled to receive, when, as and if
declared by the Board of Directors, out of the funds legally available therefor, non-cumulative
cash dividends in the amount determined as set forth in Section 3(b) and in Section 3(c), and no
more.
(b) Subject to Section 3(a), the Board of Directors may not declare and pay any dividend or
make any distribution (including, but not limited to, regular quarterly dividends) in respect of
Common Stock, whether in the form of cash or securities or any other form of property or assets,
unless the Board of Directors declares and pays to the Holders of the Preferred Stock, at the same
time and on the same terms as holders of Common Stock, an amount per share of Preferred Stock equal
to the product of (i) any per share dividend or distribution, as applicable, declared and paid or
made in respect of each share of Common Stock and (ii) the number of shares of Common Stock into
which each share of Preferred Stock is then convertible.
(c) Commencing with the Section 3(c) Dividend Period (as defined below) ending on January 9,
2009, in addition to dividends payable under Section 3(b), dividends shall be payable quarterly in
arrears, when, as and if declared by the Board of Directors, on January 9, April 9, July 9 and
October 9 of each year, or, if any such day is not a Business Day, the next Business Day,
commencing January 9, 2009, and on the Mandatory Conversion Date (each, a “Section 3(c)
Dividend Payment Date”) for each outstanding share of Preferred Stock, payable at an annual
rate on the Liquidation Preference equal to the Special Dividend Rate (such dividend, the
“Special Dividend”). Dividends payable pursuant to this Section 3(c), including for the
first Special Dividend Period and any Special Dividend Period that is shorter or longer
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than a fully quarterly Special Dividend Period, will be computed on the basis of a 360-day
year of twelve 30-day months. No interest or sum of money in lieu of interest will be paid on any
dividend payment on a Preferred Stock paid later than the scheduled Section 3(c) Dividend Payment
Date. Each period from and including a Section 3(c) Dividend Payment Date to but excluding the
following Section 3(c) Dividend Payment Date is herein referred to as a “Section 3(c) Dividend
Period.”
(d) Each dividend will be payable to Holders of record as they appear in the records of the
Company at the close of business on the same record date, which (i) with respect to dividends
payable pursuant to Section 3(b), shall be the same day as the record date for the payment of the
corresponding dividends to the holders of shares of Common Stock and (ii) with respect to dividends
payable pursuant to Section 3(c), shall be on the first Business Day of the month in which the
relevant Section 3(c) Dividend Payment Date occurs.
(e) Dividends on the Preferred Stock, including Special Dividends, are non-cumulative. If the
Board of Directors does not declare a dividend on the Preferred Stock in respect of any dividend
period, the Holders will have no right to receive any dividend for such dividend period, and the
Company will have no obligation to pay a dividend for such dividend period, whether or not
dividends are declared and paid for any future dividend period with respect to the Preferred Stock
or the Common Stock or any other class or series of the Company’s preferred stock.
(f) If full dividends payable pursuant to Section 3(b) or Section 3(c) on all outstanding
shares of the Preferred Stock have not been declared and paid, or declared and a sum sufficient for
the payment of those dividends been set aside, the Corporation may not: (i) declare and pay or set
aside for payment or declare and make or set aside for payment any distribution on any Junior
Securities (other than a dividend payable solely in Junior Securities); (ii) repurchase, redeem, or
otherwise acquire for consideration, directly or indirectly, any Junior Securities (other than as a
result of a reclassification of Junior Securities for or into other Junior Securities, or the
exchange or conversion of one Junior Security for or into another Junior Security, and other than
through the use of the proceeds of a substantially contemporaneous sale of other Junior
Securities), nor shall any monies be paid to or made available for a sinking fund for the
redemption of any Junior Securities by the Corporation; or (iii) repurchase, redeem, or otherwise
acquired for consideration any Parity Securities otherwise than pursuant to pro rata offers to
purchase all, or a pro rata portion, of the Preferred Stock and such Parity Securities except by
conversion into or exchange for Junior Securities. The foregoing limitations do not apply to
purchases or acquisitions of Junior Securities 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 its subsidiaries adopted before or after the
Effective Date.
(g) If full dividends payable pursuant to Section 3(b) or Section 3(c) on all outstanding
shares of the Preferred Stock have not been declared and paid, or declared and a sum sufficient for
the payment of those dividends been set aside, the Corporation may not declare, pay, or set aside
for payment dividends on any Parity Securities for any period; provided, however, that to the
extent that the Corporation declares dividends on the Preferred Stock and on any Parity Securities
but does not make full payment of such declared dividends, the Corporation will allocate the
dividend payments on a pro rata basis among the Holders of the shares of Preferred Stock and the
holders of any Parity Securities. For purposes of calculating the pro rata allocation of partial
dividend payments, the Corporation will allocate dividend payments based on the ratio between the
then-current dividend payments due on the shares of Preferred Stock and the aggregate of the
current and accrued dividends due on any Parity Securities.
Section 4. Voting Rights.
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(a) Except as otherwise required by law, the Amended and Restated Articles of Incorporation or
set forth in this Section 4, Holders of the Preferred Stock are not entitled to any voting rights.
(b) Unless the approval of a greater number of shares of Preferred Stock is required by law,
the Corporation will not, without the approval of the Holders of at least two-thirds of the shares
of Preferred Stock then outstanding, given in person or by proxy either at an annual meeting or at
a special meeting called for that purpose, at which the Holders of the Preferred Stock shall vote
separately as a single class, amend, alter or repeal any provisions of the Amended and Restated
Articles of Incorporation by way of merger, consolidation, combination, reclassification or
otherwise, so as to increase or decrease the aggregate number of authorized shares of Preferred
Stock or to affect adversely any, right, preference or voting power of the Holders of the Preferred
Stock; provided that any amendment of the provisions of the Amended and Restated Articles of
Incorporation so as to issue, authorize or increase the authorized amount of, or issue or authorize
any obligation or security convertible into or evidencing a right to purchase, any Parity
Securities or Junior Securities shall be deemed not to affect adversely the right, preference or
voting power of the Holders of the Preferred Stock. Notwithstanding anything in the foregoing to
the contrary, any amendment, alteration or repeal of any of the provisions of the Amended and
Restated Articles of Incorporation occurring in connection with any merger or consolidation of the
Corporation of the type described in Section 13(a)(i) or any statutory exchange of our securities
with another Person (other than in connection with a merger or acquisition) of the type described
in Section 13(a)(iv) shall be deemed not to adversely affect the rights, preferences or voting
power of the Holders of the Preferred Stock; provided that the shares of the Preferred Stock will
remain outstanding or will become shares of the successor Person or its ultimate parent, having in
respect of such Person rights, preferences or voting powers that would not alter or change the
rights, preferences or voting powers of the Holders of Preferred Stock immediately prior to the
consummation of such merger, consolidation, or statutory exchange so as to affect them adversely
and shall be convertible into the kind and amount of net cash, securities and other property as
determined in accordance with the provisions governing Reorganization Events as described in
Section 13.
(c) If and whenever an amount equal to six full quarterly dividends, whether or not
consecutive, payable on any class or series of the preferred shares of the Corporation, including
the Preferred Stock, are not paid or otherwise declared and set aside for payment, the holders of
preferred shares of the Corporation, including the Preferred Stock, voting separately as a single
class shall be entitled to increase the authorized number of directors on the Board of Directors by
two and elect such two additional directors to the Board of Directors at the next annual meeting or
special meeting of the shareholders. Not later than 40 days after the entitlement arises the Board
of Directors shall convene a special meeting of the holders of the preferred shares for the purpose
of electing the additional two directors. If the Board of Directors fails to convene such meeting
within such 40-day period, then holders of 10% of the outstanding preferred shares of the
Corporation, including the Preferred Stock, taken as a single class, may call the meeting. If all
declared and unpaid dividends in default on preferred shares of the Corporation, including the
Preferred Stock, have been paid in full or declared and set apart for payment, the Holders of the
Preferred Stock and the other preferred shares will no longer have the right to vote on directors
and the term of office of each director so elected will terminate at the next annual meeting of
shareholders and the authorized number of the directors of the Corporation will, without further
action, be reduced accordingly.
(d) The Corporation will not, without the consent of Holders of at least two-thirds of the
shares of Preferred Stock and any class or series of Parity Securities then outstanding, voting
together as a single class:
(i) reclassify any authorized shares of the Corporation into any shares of any
class, or any obligation or security convertible into or evidencing a right to
purchase such shares,
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ranking senior to the Preferred Stock as to payment of dividends or distribution of
assets upon the dissolution, liquidation or winding up; or
(ii) issue, authorize or increase the authorized amount of, or issue or authorize
any obligation or security convertible into or evidencing a right to purchase any
stock of any class or series ranking senior to the Preferred Stock as to payment of
dividends or distribution of assets upon the dissolution, liquidation or winding up
of the Corporation, provided that the Corporation may issue, authorize or increase
the authorized amount of, or issue or authorize any obligation or security
convertible into or evidencing a right to purchase, any shares of capital stock
ranking on a parity with or junior to the Preferred Stock as to payment of dividends
or distribution of assets upon the dissolution, liquidation or winding up of the
Corporation without the vote of the Holders of the Preferred Stock.
(e) In exercising the voting rights set forth in this Section 4, each share of Preferred Stock
shall have one vote per share. In any case where the Holders of the Preferred Stock are entitled
to vote as a class with holders of Parity Securities or other classes or series of Preferred
Shares, each class or series shall have a number of votes proportionate to the aggregate
liquidation preference of its outstanding shares.
Section 5. Liquidation, Dissolution or Winding Up.
(a) In the event of a voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, subject to the rights of holders of Parity Securities or holders of any shares of the
capital stock then outstanding ranking senior to the Preferred Stock in respect of distributions
upon liquidation, dissolution or winding up of the Corporation, the Holders of the Preferred Stock
then outstanding will be entitled to receive, out of the net assets legally available for
distribution to shareholders, before any distribution or payment is made on any Junior Securities,
a liquidating distribution equal to the greater of (i) $50 per share and (ii) the value of the
number of Common Shares into which a share of Preferred Stock would convert at the then Conversion
Rate if Shareholder Approval were obtained, subject to adjustment for stock splits, combinations,
reclassifications or other similar events involving the Preferred Stock, plus an amount equal to
the sum of all declared and unpaid dividends, and such Holders shall be deemed to be the Holders of
record for such dividend periods or portions thereof. After the payment to the Holders of the
Preferred Stock of the full amounts provided for in this Section 5(a), the Holders of the Preferred
Stock will have no right or claim to any of the Corporation’s remaining assets.
(b) For the purpose of this Section 5, none of the following shall constitute or be deemed to
constitute a voluntary or involuntary liquidation, dissolution or winding up of the Corporation:
(i) the sale, transfer, lease or conveyance of all or substantially all of the
Corporation’s property or business;
(ii) the consolidation or merger of the Corporation with or into any other Person;
or
(iii) the consolidation or merger of any other Person with or into the Corporation.
(c) In the event the assets of the Corporation available for distribution to the holders of
preferred shares of the Corporation, including the Preferred Stock, upon liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, are insufficient to pay in full
all amounts to which such holders are entitled, the Holders of the Preferred Stock and the holders
of Parity Securities, shall share ratably in any distribution of the assets of the Corporation
based upon the proportion of the full
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respective liquidation preference of such series to the aggregate liquidation preference for
all outstanding shares for each series.
(d) Written notice of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, stating the payment date or dates when, and the place or places where, the amounts
distributable to holders of Preferred Stock in such circumstances shall be payable, shall be given
by first-class mail, postage prepaid, mailed not less than twenty calendar days prior to any
payment date stated therein, to the Holders of Preferred Stock, at the address shown on the books
of the Corporation or the Transfer Agent; provided, however, that a failure to give notice as
provided above or any defect therein shall not affect the Corporation’s ability to consummate a
voluntary or involuntary liquidation, dissolution or winding up of the Corporation.
Section 6. Mandatory Conversion on the Mandatory Conversion Date.
Effective as of the close of business on the Mandatory Conversion Date with respect to any
share of Preferred Stock, such share of Preferred Stock shall automatically convert into shares of
Common Stock at the Conversion Rate (subject to the conversion procedures of Section 9 hereof) plus
cash in lieu of fractional shares in accordance with Section 11 hereof.
Section 7. Maturity. The Preferred Stock shall be perpetual.
Section 8. Redemption. The Preferred Stock shall not be redeemable either at the Corporation’s
option or at the option of the Holders at any time.
Section 9. Conversion Procedures.
(a) No later than two Business Days following the Shareholder Approval, the Corporation shall
provide notice of the conversion to each Holder (the “Notice of Mandatory Conversion”). In
addition to any information required by applicable law or regulation, the Notice of Mandatory
Conversion with respect to such Holder shall state, as appropriate.
(i) the Mandatory Conversion Date;
(ii) the number of shares of Common Stock to be issued upon conversion of each share
of Preferred Stock held of record by such Holder and subject to such mandatory
conversion; and
(iii) the place or places where certificates for shares of Preferred Stock held of
record by such Holder are to be surrendered for issuance of certificates
representing shares of Common Stock.
(b) Effective immediately prior to the close of business on the Mandatory Conversion Date with
respect to any share of Preferred Stock, dividends shall no longer be declared on any share of
Preferred Stock and each share of Preferred Stock shall cease to be outstanding, in each case,
subject to the right of the Holder to receive any declared and unpaid dividends on such share to
the extent provided in Section 3 and any other payments to which such Holder is otherwise entitled
pursuant to Section 6, Section 11 or Section 13, as applicable.
(c) No allowance or adjustment, except pursuant to the provisions contained in Section 12,
shall be made in respect of dividends payable to holders of Common Stock of record as of any date
prior to the close of business on the Mandatory Conversion Date with respect to any share of
Preferred Stock. Prior to
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the close of business on the Mandatory Conversion Date with respect to any share of Preferred
Stock, shares of Common Stock issuable upon conversion thereof, or other securities issuable upon
conversion thereof, shall not be deemed outstanding for any purpose, and the holder thereof shall
have no rights with respect to Common Stock or other securities issuable upon conversion (including
voting rights, rights to respond to tender offers for Common Stock or other securities issuable
upon conversion) by virtue of holding such share of Preferred Stock (except to the extent of the
dividends described in Section 3(b)).
(d) Shares of Preferred Stock duly converted in accordance with this Certificate of
Designations, or otherwise reacquired by the Corporation, will resume the status of authorized and
unissued preferred stock, undesignated as to series and available for future issuance. Subject to
Section 4(b), the Corporation may from time to time take such appropriate action as may be
necessary to reduce the authorized number of shares of Preferred Stock
(e) The person or persons entitled to receive Common Stock and/or cash, securities or other
property issuable upon conversion of Preferred Stock shall be treated for all purposes as the
record holder(s) of such shares of Common Stock and/or securities as of the close of business on
the Mandatory Conversion Date with respect thereto. In the event that a Holder shall not by written
notice designate the name in which shares of Common Stock and/or cash, securities or other property
(including payments of cash in lieu of fractional shares) to be issued or paid upon conversion of
shares of Preferred Stock should be registered or paid or the manner in which such shares should be
delivered, the Corporation shall be entitled to register and deliver such shares, and make such
payment, in the name of the Holder and in the manner shown on the records of the Corporation.
(f) On the Mandatory Conversion Date with respect to any share of Preferred Stock,
certificates representing shares of Common Stock shall be issued and delivered to the Holder
thereof or such Holder’s designee upon presentation and surrender of the certificate evidencing the
Preferred Stock to the Corporation, or in the case of global certificates, a book-entry transfer
through DTC will be made by the conversion agent, and, if required, the furnishing of appropriate
endorsements and transfer documents and the payment of all transfer and similar taxes
Section 10. Reservation of Common Stock.
(a) Following receipt of the Shareholder Approval, the Corporation shall at all times reserve
and keep available out of the authorized and unissued shares of Common Stock or shares held in the
treasury by the Corporation, solely for issuance upon the conversion of the Preferred Stock, that
number of shares of Common Stock as shall be issuable upon the conversion of all the Preferred
Stock then outstanding.
(b) All shares of Common Stock delivered upon conversion of the Preferred Stock shall be duly
authorized, validly issued, fully paid and non-assessable, free and clear of all liens, claims,
security interests and other encumbrances (other than liens, charges, security interests and other
encumbrances created by the Holders).
Section 11. Fractional Shares.
(a) No fractional shares of Common Stock will be issued as a result of any conversion of
shares of Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in respect of any
mandatory conversion pursuant to Section 6 hereof, the Corporation shall pay an amount in cash
(computed to the nearest cent) equal to the same fraction of the average daily Closing Price per
share of
8
the Common Stock for each of the five consecutive Trading Days preceding the Trading Day
immediately preceding the Mandatory Conversion Date.
(c) If more than one share of the Preferred Stock is surrendered for conversion at one time by
or for the same Holder, the number of full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares of the Preferred Stock so
surrendered.
Section 12. Anti-Dilution Adjustments to the Conversion Rate.
(a) Anti-Dilution
Adjustments. The Conversion Rate and the number of shares of Common Stock to
be delivered upon conversion shall be subject to the following adjustments if occurring at any time
prior to the Mandatory Conversion Date:
(i) Stock
Dividends and Distributions. If the Corporation pays dividends or other
distributions on the Common Stock in shares of Common Stock, then the Conversion
Rate in effect immediately prior to the “ex-date” for such dividend or distribution
will be multiplied by the following fraction:
| OS1
|
Where,
OSo = the number of shares of Common Stock outstanding immediately prior
to the “ex-date” for such dividend or distribution.
OS1 = the sum of the number of shares of Common Stock outstanding
immediately prior to the “ex-date” for such dividend or distribution plus the total
number of shares of Common Stock constituting such dividend.
(ii) Subdivisions,
Splits and Combinations of the Common Stock. If the Corporation
subdivides, splits, or combines the shares of Common Stock, then the Conversion Rate
in effect immediately prior to the “ex-date” for such dividend or distribution will
be multiplied by the following fraction:
| OS1
|
Where,
OSo = the number of shares of Common Stock outstanding immediately prior
to the effective date of such share subdivision, split, or combination.
OS1 = the number of shares of Common Stock outstanding immediately after
the opening of business on the effective date of such share subdivision, split, or
combination.
(iii) Issuance
of Stock Purchase Rights. If the Corporation issues to all holders of
shares of Common Stock rights or warrants (other than rights or warrants issued
pursuant to a dividend reinvestment plan or share purchase plan or other similar
plans) entitling them, for a period of up to 45 days from the date of issuance of
such rights or warrants, to subscribe for or purchase the shares of Common Stock at
less than the Current Market
9
Price on the date fixed for the determination of stockholders entitled to receive
such rights or warrants, then the Conversion Rate in effect immediately prior to the
“ex-date” for such distribution will be multiplied by the following fraction:
| OSo + X
|
Where,
OSo = the number of shares of Common Stock outstanding immediately prior
to the “ex-date” for such distribution.
X = the total number of shares of Common Stock issuable pursuant to such rights or
warrants.
Y = the number of shares of Common Stock equal to the aggregate price payable to
exercise such rights or warrants divided by the Current Market Price.
To the extent that such rights or warrants are not exercised prior to their
expiration or shares of Common Stock are otherwise not delivered pursuant to such
rights or warrants upon the exercise of such rights or warrants, the Conversion Rate
shall be readjusted to such Conversion Rate that would then be in effect had the
adjustment made upon the issuance of such rights or warrants been made on the basis
of the delivery of only the number of shares of Common Stock actually delivered. In
determining the aggregate offering price payable for such shares of Common Stock,
the conversion agent will take into account any consideration received for such
rights or warrants and the value of such consideration (if other than cash, to be
determined by the Board).
(iv) Debt
or Asset Distribution.
(A) If the Corporation shall distribute to all holders of its Common Stock evidences of its
indebtedness, shares of capital stock, securities, cash or other assets (excluding any dividend or
distribution referred to in Section 12(a)(i) or Section 12(a)(ii) hereof, any rights or warrants
referred to in Section 12(a)(iii) hereof, any dividend or distribution paid exclusively in cash,
any consideration payable in connection with a tender or exchange offer made by the Corporation or
any subsidiary of the Corporation, and any dividend of shares of capital stock of any class or
series, or similar equity interests, of or relating to a subsidiary or other business unit in the
case of a spin-off referred to in Section 12(a)(iv)(B) below), then the Conversion Rate in effect
immediately prior to the close of business on the date fixed for the determination of shareholders
entitled to receive such distribution will be multiplied by the following fraction:
| SPo
|
Where,
SPo = the Current Market Price per share of Common Stock on the date
fixed for distribution.
10
FMV= the fair market value of the portion of the distribution applicable to one
share of Common Stock as determined by the Board.
(B) In a spin-off, where the Corporation makes a distribution to all holders of shares of
Common Stock consisting of capital stock of, or similar equity interests in, or relating to a
subsidiary or other business unit, the Conversion Rate will be adjusted on the fifteenth Trading
Day after the “ex-date” for the distribution by multiplying the Conversion Rate in effect
immediately prior to the close of business on the date fixed for the determination of shareholders
entitled to receive such distribution by the following fraction:
| MPo + MPs
|
Where,
MPo = the Current Market Price per share of Common Stock on the fifteenth
Trading Day after the “ex-date” for the distribution.
MPs = the Current Market Price of the shares of the subsidiary representing the
portion of distribution applicable to one share of Common Stock on the fifteenth
Trading Day after the “ex-date” for the distribution.
(v) Self
Tender Offers and Exchange Offers. If the Corporation or any of its
subsidiaries successfully complete a tender or exchange offer for Common Stock where
the cash and the value of any other consideration included in the payment per share
of Common Stock exceeds the Current Market Price per share of Common Stock on the
seventh Trading Day after the expiration of the tender or exchange offer,
immediately prior to the opening of business on the eighth Trading Day after the
expiration date of the tender or exchange offer, then the Conversion Rate in effect
on the eighth Trading Day after the expiration of the tender or exchange offer will
be divided by the following fraction:
| (SPo x OSo) - AC
|
Where,
SPo = the Current Market Price per share of Common Stock on the seventh
Trading Day after the expiration of the tender or exchange offer.
OSo = the number of shares of Common Stock outstanding at the expiration
of the tender or exchange offer, including any shares validly tendered and not
withdrawn.
AC = the aggregate cash and fair market value of the other consideration payable in
the tender or exchange offer, as determined by the Board of Directors.
TS = the number of shares of Common Stock validly tendered and not withdrawn at the
expiration of the tender or exchange offer.
11
(vi) Rights
Plans. To the extent that the Corporation has a rights plan in effect on
the Mandatory Conversion Date, upon conversion of any Preferred Stock, Holders shall
receive, in addition to the Common Stock, the rights under such rights plan, unless,
prior to the Mandatory Conversion Date, the rights have separated from the Common
Stock, in which case the Conversion Rate will be adjusted at the time of separation
of such rights as if the Corporation made a distribution to all holders of the
Common Stock as described in clause (iv) above, subject to readjustment in the event
of the expiration, termination or redemption of such rights.
(b) Adjustment
for Tax Reasons. The Corporation may make such increases in the Conversion
Rate, in addition to any other increases required by this Section 12, if the Board deems it
advisable to avoid or diminish any income tax to holders of the Common Stock resulting from any
dividend or distribution (or issuance of rights or warrants to acquire shares) or from any event
treated as such for income tax purposes or for any other reason.
(c) Calculation
of Adjustments.
(i) Adjustments to the Conversion Rate shall be calculated to the nearest 1/10,000th
of a share (or, if there is not a nearest 1/10,000th of a share, to the next lower
1/10,000th of a share) of Common Stock. Prior to the Mandatory Conversion Date, no
adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent therein;
provided that any
adjustments which by reason of this subparagraph are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment; provided,
further, that on the earlier of the Mandatory Conversion Date and the date the
Corporation consummates an acquisition, adjustments to the Conversion Rate will be
made with respect to any such adjustment carried forward and which has not been
taken into account before such date.
(ii) No adjustment to the Conversion Rate need be made if Holders may participate,
on an as-converted basis, in the transaction that would otherwise give rise to an
adjustment, so long as the distributed assets or securities the Holders would
receive upon conversion of the Preferred Stock, if convertible, exchangeable, or
exercisable, are convertible, exchangeable or exercisable, as applicable, without
any loss of rights or privileges for a period of at least 45 days following
conversion of the Preferred Stock. The Preferred Stock will participate in all
dividends and distributions declared on shares of Common Stock as described in
Section 3(b) and as a result no adjustments will be made to the Conversion Rate as a
result of such dividends and distributions.
(iii) The Conversion Rate shall not be adjusted:
(A) upon the issuance of any shares of Common Stock pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on the Corporation’s securities and
the investment of additional optional amounts in shares of Common Stock under any plan;
(B) upon the issuance of any shares of Common Stock or rights or warrants to purchase those
shares pursuant to any present or future employee, director or consultant benefit plan or program
of or assumed by the Corporation or any of its subsidiaries;
(C) upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right
or exercisable, exchangeable or convertible security outstanding as of the date shares of the
Preferred Stock were first issued;
12
(D) for a change in the par value or no par value of the Common Stock; or
(E) for accrued, cumulated and unpaid dividends.
(d) Notice
of Adjustment. Whenever the Conversion Rate is to be adjusted in accordance with
Section 12(a) or Section 12(b), the Corporation shall: (i) compute the Conversion Rate in
accordance with Section 12(a) or Section 12(b), taking into account the one percent threshold set
forth in Section 12(c) hereof; (ii) as soon as practicable following the occurrence of an event
that requires an adjustment to the Conversion Rate pursuant to Section 12(a) or Section 12(b),
taking into account the one percent threshold set forth in Section 12(c) hereof (or if the
Corporation is not aware of such occurrence, as soon as practicable after becoming so aware),
provide, or cause to be provided, a written notice to the Holders of the occurrence of such event;
and (iii) as soon as practicable following the determination of the revised Conversion Rate in
accordance with Section 12(a) or Section 12(b) hereof, provide, or cause to be provided, a written
notice to the Holders setting forth in reasonable detail the method by which the adjustment to the
Conversion Rate was determined and setting forth the revised Conversion Rate.
(e) The Corporation shall have the power to resolve any ambiguity or correct any error in this
Section 12 and its action in so doing, as evidenced by a resolution of the Board, or a duly
authorized committee thereof, shall be final and conclusive.
Section 13. Reorganization Events.
(a) In the event of:
(i) any consolidation or merger of the Corporation with or into another Person in
each case pursuant to which Common Stock will be converted into cash, securities or
other property of the Corporation or another Person;
(ii) any sale, transfer, lease or conveyance to another Person of all or
substantially all of the property and assets of the Corporation in each case
pursuant to which Common Stock will be converted into cash, securities or other
property;
(iii) any reclassification of Common Stock into securities, including securities
other than Common Stock; or
(iv) any statutory exchange of securities of the Corporation with another Person
(other than in connection with a merger or acquisition);
(any such event specified in this Section 13(a), a “Reorganization Event”); each
share of Preferred Stock outstanding immediately prior to such Reorganization Event will,
without the consent of Holders, remain outstanding but will become convertible into the kind
of securities, cash and other property receivable in such Reorganization Event by the holder
(excluding the counterparty to the Reorganization Event or an affiliate of such
counterparty) of that number of shares of Common Stock into which the share of Preferred
Stock would then be convertible assuming the receipt of the Shareholder Approval (such
securities, cash and other property, the “Exchange Property”).
(b) In the event that holders of the shares of Common Stock have the opportunity to elect the
form of consideration to be received in such transaction, the consideration that the Holders are
entitled to receive shall be deemed to be the types and amounts of consideration received by the
majority of the holders of the shares of Common Stock that affirmatively make an election. The
amount of Exchange
13
Property receivable upon conversion of any Preferred Stock in accordance with Section 6 hereof
shall be determined based upon the Conversion Price in effect on the Mandatory Conversion Date.
(c) The above provisions of this Section 13 shall similarly apply to successive Reorganization
Events and the provisions of Section 12 shall apply to any shares of capital stock of the
Corporation (or any successor) received by the holders of the Common Stock in any such
Reorganization Event.
(d) The Corporation (or any successor) shall, within 20 days of the occurrence of any
Reorganization Event, provide written notice to the Holders of such occurrence of such event and of
the kind and amount of the cash, securities or other property that constitutes the Exchange
Property. Failure to deliver such notice shall not affect the operation of this Section 13.
(e) Notwithstanding anything to the contrary in this Section 13 or otherwise in this
Certificate of Designations, the Corporation shall not enter into any agreement for a transaction
constituting a Fundamental Change unless such agreement entitles Holders to receive, on an
as-converted basis, the securities, cash and other property receivable in such transaction by a
holder of shares of Common Stock that was not the counterparty to such transaction or an affiliate
of such other party.
Section 14. Replacement Stock Certificates.
(a) The Corporation shall replace any mutilated certificate at the Holder’s expense upon
surrender of that certificate to the Corporation. The Corporation shall replace certificates that
become destroyed, stolen or lost at the Holder’s expense upon delivery to the Corporation of
satisfactory evidence that the certificate has been destroyed, stolen or lost, together with any
indemnity that may be required by the Transfer Agent and the Corporation.
(b) The Corporation shall not be required to issue any certificates representing the Preferred
Stock on or after the Mandatory Conversion Date. In place of the delivery of a replacement
certificate following the Mandatory Conversion Date, the Transfer Agent, upon delivery of the
evidence and indemnity described in clause (a) above, shall deliver the shares of Common Stock
pursuant to the terms of the Preferred Stock formerly evidenced by the certificate.
Section 15. Transfer Agent, Registrar, Paying Agent and Conversion Agent. The duly appointed
Transfer Agent, Registrar, paying agent and conversion agent for the Preferred Stock shall be the
American Stock Transfer & Trust Co. The Corporation may, in its sole discretion, remove the
Transfer Agent in accordance with the agreement between the Corporation and the Transfer Agent;
provided that the Corporation shall appoint a successor transfer agent who shall accept such
appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the
Corporation shall send notice thereof by first-class mail, postage prepaid, to the Holders of the
Preferred Stock.
Section 16. Form.
(a) Preferred Stock shall be issued in the form of one or more permanent global shares of
Preferred Stock in definitive, fully registered form with the global legend (the “Global Shares
Legend”), as set forth on the form of Preferred Stock certificate attached hereto as Exhibit A
(each, a “Global Preferred Share”), which is hereby incorporated in and expressly made a part of
this Certificate of Amendment. The Global Preferred Share may have notations, legends or
endorsements required by law, stock exchange rules, agreements to which the Corporation is subject,
if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to
the Corporation). The Global Preferred Share shall be deposited on behalf of the holders of the
Preferred Stock represented thereby with the Registrar, at its New York office, as custodian for
DTC or a Depositary, and registered in the name of the
14
Depositary or a nominee of the Depositary, duly executed by the Corporation and countersigned
and registered by the Registrar as hereinafter provided. The aggregate number of shares represented
by each Global Preferred Share may from time to time be increased or decreased by adjustments made
on the records of the Registrar and the Depositary or its nominee as hereinafter provided. This
Section 17(a) shall apply only to a Global Preferred Share deposited with or on behalf of the
Depositary. The Corporation shall execute and the Registrar shall, in accordance with this Section,
countersign and deliver initially one or more Global Preferred Shares that (i) shall be registered
in the name of Cede & Co. or other nominee of the Depositary and (ii) shall be delivered by the
Registrar to Cede & Co. or pursuant to instructions received from Cede & Co. or held by the
Registrar as custodian for the Depositary pursuant to an agreement between the Depositary and the
Registrar. Members of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Certificate with respect to any Global Preferred Share held on their behalf by the
Depositary or by the Registrar as the custodian of the Depositary or under such Global Preferred
Share, and the Depositary may be treated by the Corporation, the Registrar and any agent of the
Corporation or the Registrar as the absolute owner of such Global Preferred Share for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Corporation, the
Registrar or any agent of the Corporation or the Registrar from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of the Depositary governing
the exercise of the rights of a holder of a beneficial interest in any Global Preferred Share. The
Holder of the Preferred Shares may grant proxies or otherwise authorize any Person to take any
action that a Holder is entitled to take pursuant to the Preferred Shares, this Certificate of
Designations or the Amended and Restated Certificate of Incorporation. Owners of beneficial
interests in Global Preferred Shares shall not be entitled to receive physical delivery of
certificated shares of Preferred Stock, unless (x) the Depositary is unwilling or unable to
continue as Depositary for the Global Preferred Share and the Corporation does not appoint a
qualified replacement for the Depositary within 90 days, (y) the Depositary ceases to be a
“clearing agency” registered under the Exchange Act and the Corporation does not appoint a
qualified replacement for the Depositary within 90 days or (z) the Corporation decides to
discontinue the use of book-entry transfer through the Depositary. In any such case, the Global
Preferred Share shall be exchanged in whole for definitive shares of Preferred Stock in registered
form, with the same terms and of an equal aggregate liquidation preference. Definitive shares of
Preferred Stock shall be registered in the name or names of the Person or Persons specified by the
Depositary in a written instrument to the Registrar.
(b) (i) An Officer shall sign the Global Preferred Share for the Corporation, in accordance
with the Corporation’s bylaws and applicable law, by manual or facsimile signature. (ii) If an
Officer whose signature is on a Global Preferred Share no longer holds that office at the time the
Transfer Agent countersigned the Global Preferred Share, the Global Preferred Share shall be valid
nevertheless. (iii) A Global Preferred Share shall not be valid until an authorized signatory of
the Transfer Agent manually countersigns Global Preferred Share. Each Global Preferred Share shall
be dated the date of its countersignature.
Section 17. Miscellaneous.
(a) All notices referred to herein shall be in writing, and, unless otherwise specified
herein, all notices hereunder shall be deemed to have been given upon the earlier of receipt
thereof or three Business Days after the mailing thereof if sent by registered or certified mail
(unless first-class mail shall be specifically permitted for such notice under the terms of this
Certificate of Designations) with postage prepaid, addressed: (i) if to the Corporation, to its
office at 328 South Saginaw Street, Flint, Michigan 48502-2401, Michigan 48034, or to the Transfer
Agent at its Corporate Trust Office, or other agent of the Corporation designated as permitted by
this Certificate of Designations, or (ii) if to any Holder of the Preferred Stock or holder of
shares of Common Stock, as the case may be, to such Holder at the address
15
of such Holder as listed in the stock record books of the Corporation (which may include the
records of any transfer agent for the Preferred Stock or Common Stock, as the case may be), or
(iii) to such other address as the Corporation or any such Holder, as the case may be, shall have
designated by notice similarly given.
(b) The Corporation shall pay any and all stock transfer and documentary stamp taxes that may
be payable in respect of any issuance or delivery of shares of Preferred Stock or shares of Common
Stock or other securities issued on account of Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Corporation shall not, however, be required to pay any
such tax that may be payable in respect of any transfer involved in the issuance or delivery of
shares of Preferred Stock or Common Stock or other securities in a name other than that in which
the shares of Preferred Stock with respect to which such shares or other securities are issued or
delivered were registered, or in respect of any payment to any person other than a payment to the
registered holder thereof, and shall not be required to make any such issuance, delivery or payment
unless and until the person otherwise entitled to such issuance, delivery or payment has paid to
the Corporation the amount of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid or is not payable.
Section 18. Definitions. Unless otherwise defined herein, capitalized terms used in this
Certificate of Designations shall have the following meanings:
“Agent Members” shall have the meaning set forth in Section 17(a) hereof.
“Articles of Incorporation” means the Amended and Restated Articles of Incorporation
of the Corporation.
“Board” or “Board of Directors” means the Board of Directors of the
Corporation.
“Business Day” means any day other than a Saturday or Sunday or any other day on which
banks in The City of New York or Flint, Michigan are authorized or required by law or executive
order to close.
“Certificate of Designations” means this Certificate of Designations dated June 10,
2008.
“Closing Price” means, as of any date of determination, the closing sale price or, if
no closing sale price is reported, the last reported sale price, of the Common Stock or any
securities distributed in a spin-off, as the case may be, on the Nasdaq Global Select Market on
that date. If the Common Stock or any such securities distributed in a spin-off, as the case may
be, is not then traded on the Nasdaq Global Select Market on any date of determination, the Closing
Price of the Common Stock or such securities on any date of determination means the closing sale
price as reported in the composite transactions for the principal U.S. national or regional
securities exchange on which the Common Stock or such securities is so listed or quoted, or if the
Common Stock or such securities is not so listed or quoted on a U.S. national or regional
securities exchange, the last quoted bid price for the Common Stock or such securities in the
over-the-counter market as reported by the Pink Sheets LLC or similar organization, or, if that bid
price is not available, the market price of the Common Stock or such securities on that date as
determined by a nationally recognized independent investment banking firm retained for this purpose
by the Corporation. For the purposes of this Certificate of Designations, all references herein to
the closing sale price of the Common Stock on the Nasdaq Global Select Market shall be such closing
sale price as reflected on the website of the Nasdaq Global Select Market (www.nasdaq.com) and as
reported by Bloomberg Professional Service; provided that, in the event that there is a discrepancy
between the closing sale price as reflected on the website of the Nasdaq Global Select Market and
as reported by Bloomberg Professional Service, the closing sale price on the website of the Nasdaq
Global Select Market shall govern.
16
“Common Stock” as used in this Certificate of Designations means the Corporation’s
Common Shares, no par value per share.
“Conversion Rate” shall mean, for each share of Preferred Stock, 12.50 shares of
Common Stock. The Conversion Rate shall be subject to adjustment as set forth herein.
“Corporate Trust Office” means the principal corporate trust office of the Transfer
Agent at which, at any particular time, its corporate trust business shall be administered.
“Corporation” shall have the meaning set forth in Section 1 hereof.
“Current Market Price” on any date is the average of the daily Closing Price per share
of Common Stock or other securities on each of the 10 consecutive Trading Days preceding the
earlier of the day before the date in question and the day before the “ex-date” with respect to the
issuance or distribution requiring such computation. The term “ex-date,” when used with respect to
any such issuance or distribution, means the first date on which the shares of Common Stock or
other securities trade without the right to receive such issuance or distribution. For the purposes
of determining the adjustment to the Conversion Rate for the purposes of adjustment provision in
Section 12(a)(iv) in the event of a spin-off, the “Current Market Price” per share of Common Stock
or other securities means the average of the Closing Prices over the first ten Trading Days
commencing on and including the fifth Trading Day following the “ex-date” for such distribution.
“DTC” means The Depository Trust Company.
“Effective Date” means the date on which shares of the Preferred Stock are first
issued.
“Exchange Property” shall have the meaning set forth in Section 13(a) hereof.
“Fundamental Change” means the occurrence, prior to the Mandatory Conversion Date, of
the consummation of any consolidation or merger of the Corporation or similar transaction or any
sale, lease or other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Corporation and its subsidiaries, taken as a
whole, to any Person other than one of the subsidiaries of the Corporation, in each case pursuant
to which Common Stock will be converted into cash, securities or other property, other than
pursuant to a transaction in which the Persons that “beneficially owned” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended), directly or indirectly, voting shares of
the Corporation immediately prior to such transaction beneficially own, directly or indirectly,
voting shares representing a majority of the continuing or surviving Person immediately after the
transaction.
“Global Preferred Share” shall have the meaning set forth in Section 17(a) hereof.
“Global Shares Legend” shall have the meaning set forth in Section 17(a) hereof.
“Holder” means the person in whose name the shares of the Preferred Stock are
registered, which may be treated by the Corporation and the Transfer Agent as the absolute owner of
the shares of Preferred Stock for the purpose of making payment and settling conversions and for
all other purposes.
“Junior Securities” shall have the meaning set forth in Section 2 hereof.
“Liquidation Preference” means, as to the Preferred Stock, $50 per share.
17
“Mandatory Conversion Date” means the fifth Business Day after which the Shareholder
Approval has been received.
“Notice of Mandatory Conversion” shall have the meaning set forth in Section 9(a)
hereof.
“Parity Securities” shall have the meaning set forth in Section 2 hereof.
“Person” means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company or trust.
“Preferred Stock” shall have the meaning set forth in Section 1 hereof.
“Registrar” shall mean the Transfer Agent acting in its capacity as registrar for the
Preferred Stock, and its successors and assigns.
“Reorganization Event” shall have the meaning set forth in Section 13(a) hereof.
“Section 3(c) Dividend Payment Date” shall have the meaning set forth in Section 3(c)
hereof.
“Section 3(c) Dividend Period” shall have the meaning set forth in Section 3(c)
hereof.
“Senior Securities” shall have the meaning set forth in Section 2 hereof.
“Shareholder Approval” means the approval by the holders of Common Stock of an
amendment to the Amended and Restated Articles of Incorporation of the Corporation to increase the
number of authorized shares of Common Stock to permit the full conversion of the Preferred Stock
into Common Stock.
“Special Dividend” shall have the meaning set forth in Section 3(c) hereof.
“Special Dividend Rate” means (i) prior to October 9, 2009, 0% per annum, (ii) from
and after October 9, 2008 to but not including April 9, 2009, 15% per annum , (iii) from and after
April 9, 2009 to but not including October 9, 2009, 16% per annum and (iv) from and after October
9, 2009, 17% per annum.
“Trading Day” means a day on which the Common Stock:
(a) is not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business; and
(b) has traded at least once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common Stock.
“Transfer Agent” means the American Stock Transfer & Trust Co. acting as transfer
agent, Registrar, paying agent and conversion agent for the Preferred Stock, and its successors and
assigns.
18
8CSCO-515 (Rev. 03/07)
MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH
BUREAU OF COMMERCIAL SERVICES
BUREAU OF COMMERCIAL SERVICES
(FOR BUREAU USE ONLY)
Date Received
This document is effective on the date filed, unless a subsequent effective
date within 90 days after received date is stated in the document.
Name
MARK A. METZ, DYKEMA GOSSETT LLC
Address
400 RENAISSANCE CENTER
City
|
State | ZIP code | ||||
DETROIT
|
MI | 48243 | ||||
Document
will be returned to the name and address you enter above.
If left blank document will be mailed to the registered office.
If left blank document will be mailed to the registered office.
EFFECTIVE
DATE:
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
For use by Domestic Profit and Nonprofit Corporations
(Please read information and instructions on the last page}
Pursuant to the provisions of Act 284, Public Acts of 1972, (profit corporations), or Act 162,
Public Acts of 1982 (nonprofit corporations), the undersigned
corporation executes the following Certificate:
| 1. | The present name of the corporation is: CITIZENS REPUBLIC BANCORP, INC. | |
| 2. | The identification number assigned by the Bureau is: 031-208 | |
| 3. | Article III of the Articles of Incorporation is hereby amended to read as follows: | |
| The total authorized capital stock is: | ||
| Common Shares 150,000,000 No Par Value | ||
| Preferred Shares 5,000,000 No Par Value |
COMPLETE ONLY ONE OF THE FOLLOWING:
| 4. | Profit or Nonprofit Corporation: For amendments adopted by unanimous consent of incorporators before the first meeting of the board of directors or trustees. |
The
foregoing amendment to the Articles of Incorporation was duly adopted on the day of
. in
accordance with the provisions of the Act by the unanimous consent of the
incorporator(s) before the first meeting of the Board of Directors or Trustees.
Signed this day of ,
| (Signature) | (Signature) | |
| (Type or Print Name) | (Type or Print Name) | |
| (Signature) | (Signature) | |
| (Type or Print Name) | (Type or Print Name) |
| 5. | Profit Corporation Only: Shareholder or Board Approval |
The foregoing amendment to the Articles of Incorporation proposed by the board was duly adopted on the 22nd day of SEPTEMBER , 2008, by the: (check one of the following)
| þ | shareholders at a meeting in accordance with Section 611(3) of the Act. |
| o | written consent of the shareholders having not less than the minimum number of votes required by statute in accordance with Section 407(1) of the Act. Written notice to shareholders who have not consented in writing has been given. (Note: Written consent by less than all of the shareholders is permitted only if such provision appears in the Articles of Incorporation.) |
| o | written consent of all the shareholders entitled to vote in accordance with Section 407(2) of the Act. |
| o | board of a profit corporation pursuant to section 611(2) of the Act. |
Profit Corporations and Professional Service Corporations
Signed this 22 day of September , 2008
By /s/ Thomas W. Gallagher
(Signature of an authorized officer or agent)
Thomas W. Gallagher
(Type or Print Name)
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UST Sequence Number: 116
CERTIFICATE OF DESIGNATIONS
OF
FIXED
RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A
OF
CITIZENS REPUBLIC BANCORP, INC.
Citizens Republic Bancorp, Inc., a corporation organized and existing under the laws of
the State of Michigan (the “Corporation”), in accordance with the provisions of
Section 302(4) of the Michigan Business Corporation Act, does hereby certify:
The board of directors of the Corporation (the “Board of Directors”) or an
applicable committee of the Board of Directors, in accordance with the Amended and Restated
Articles of Incorporation of the Corporation and applicable law, adopted the following
resolution on December 10, 2008 creating a series of 300,000 shares of Preferred Stock of the
Corporation designated as “Fixed Rate Cumulative Perpetual
Preferred Stock, Series A”.
RESOLVED, that pursuant to the provisions of the Amended and Restated Articles of
Incorporation of the Corporation and applicable law, a series of Preferred Stock, no par value,
of the Corporation be and hereby is created, and that 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:
Part 1. Designation and Number of Shares. There is hereby created out of the
authorized and unissued shares of preferred stock of the Corporation a series of preferred
stock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock, Series A” (the
“Designated Preferred Stock”). The authorized number of shares of Designated Preferred
Stock shall be 300,000.
Part 2. Standard Provisions. The Standard Provisions contained in Annex A
attached hereto are incorporated herein by reference in their entirety and shall be deemed to
be a part of this Certificate of Designations to the same extent as if such provisions had
been set forth in full herein.
Part 3. Definitions. The following terms are used in this Certificate of
Designations (including the Standard Provisions in Annex A hereto) as defined below:
(a) “Common Stock” means the common stock, no par value, of the Corporation.
(b) “Dividend Payment Date” means February 15, May 15, August 15 and November 15
of each year.
(c)“Junior Stock” means the Common Stock, and any other class or series of
stock of the Corporation the terms of which expressly provide that it ranks junior to
Designated
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Preferred Stock as to dividend rights and/or as to rights on liquidation, dissolution or
winding up of the Corporation.
(d) “Liquidation Amount” means $1,000 per share of Designated Preferred Stock.
(e) “Minimum Amount” means $75,000,000.
(f) “Parity Stock” means any class or series of stock of the Corporation (other
than Designated Preferred Stock) the terms of which do not expressly provide that such class
or series will rank senior or junior to Designated Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of the Corporation (in each
case without regard to whether dividends accrue cumulatively or non-cumulatively).
(g) “Signing Date” means the Original Issue Date.
Part 4. Certain Voting Matters. Whether the vote or consent of the holders of a
plurality, majority or other portion of the shares of Designated Preferred Stock and any
Voting Parity Stock has been cast or given on any matter on which the holders of shares of
Designated Preferred Stock are entitled to vote shall be determined by the Corporation by
reference to the specified liquidation amount of the shares voted or covered by the consent as
if the Corporation were liquidated on the record date for such vote or consent, if any, or, in
the absence of a record date, on the date for such vote or consent. For purposes of
determining, the voting rights of the holders of Designated Preferred Stock under Section 7 of
the Standard Provisions forming part of this Certificate of Designations, each holder will be
entitled to one vote for each $1,000 of liquidation preference to which such holder’s shares
are entitled.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, CITIZENS REPUBLIC BANCORP, INC. has caused this Certificate of
Designations to be signed by William R. Hartman, its Chairman, President and Chief Executive
Officer, this l2th day of December, 2008.
| CITIZENS REPUBLIC BANCORP, INC. | ||||
| By: | /s/ William R. Hartman | |||
| Name: | William R. Hartman | |||
| Title: | Chairman, President and Chief Executive Officer | |||
[Certificate of Designations]
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UST Sequence Number 116
| ANNEX A |
STANDARD PROVISIONS
Section 1. General Matters. Each share of Designated Preferred Stock shall be
identical in all respects to every other share of Designated
Preferred Stock. The Designated
Preferred Stock shall be perpetual, subject to the provisions of Section 5 of these Standard
Provisions that form a part of the Certificate of Designations. The Designated Preferred Stock
shall rank equally with Parity Stock and shall rank senior to Junior Stock with respect to the
payment of dividends and the distribution of assets in the event of any dissolution,
liquidation or winding up of the Corporation.
Section 2. Standard Definitions. As used herein with respect to Designated
Preferred Stock:
(a) “Applicable Dividend Rate” means (i) during the period from the Original
Issue Date to, but excluding, the first day of the first Dividend Period commencing on or
after the fifth anniversary of the Original Issue Date, 5% per annum and (ii) from and after
the first day of the first Dividend Period commencing on or after the fifth anniversary of the
Original Issue Date, 9% per annum.
(b) “Appropriate Federal Banking Agency” means the “appropriate Federal banking
agency” with respect to the Corporation as defined in Section 3(q) of the Federal Deposit
Insurance Act (12 U.S.C Section 1813(q)), or any successor provision.
(c) “Business Combination” means a merger, consolidation, statutory share
exchange
or similar transaction that requires the approval of the Corporation’s stockholders.
(d) “Business Day” means any day except Saturday, Sunday and any day on which
banking institutions in the State of New York generally are authorized or required by law or
other governmental actions to close.
(e) “Bylaws” means the bylaws of the Corporation, as they may be amended from
time to time.
(f) “Certificate of Designations” means the Certificate of Designations or
comparable instrument relating to the Designated Preferred Stock, of which these Standard
Provisions form a part, as it may be amended from time to time.
(g) “Charter” means the Corporation’s certificate or articles of
incorporation, articles of association, or similar organizational document.
(h) “Dividend Period” has the meaning set forth in Section 3(a).
(i) “Dividend Record Date” has the meaning set forth in Section 3(a).
(j) “Liquidation Preference” has the meaning set forth in Section 4(a).
(k) “Original Issue Date” means the date on which shares of Designated
Preferred Stock are first issued.
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(l) “Preferred Director” has the meaning set forth in Section 7(b).
(m) “Preferred Stock” means any and all series of preferred stock of the
Corporation, including the Designated Preferred Stock.
(n) “Qualified Equity Offering” means the sale and issuance for cash by
the Corporation to persons other than the Corporation or any of its subsidiaries after the
Original Issue Date of shares of perpetual Preferred Stock, Common Stock or any combination
of such stock, that, in each case, qualify as and may be included in Tier 1 capital of the
Corporation at the time of issuance under the applicable risk-based capital guidelines of the
Corporation’s Appropriate Federal Banking Agency (other than any such sales and issuances
made pursuant to agreements or arrangements entered into, or pursuant to financing plans
which were publicly announced, on or prior to October 13, 2008).
(o) “Share Dilution Amount” has the meaning set forth in Section 3(b).
(p) “Standard Provisions” mean these Standard Provisions that form a
part of the Certificate of Designations relating to the Designated Preferred Stock.
(q) “Successor Preferred Stock” has the meaning set forth in Section
5(a).
(r) “Voting Parity Stock” means, with regard to any matter as to which the
holders of
Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and 7(b)
of these
Standard Provisions that form a part of the Certificate of Designations, any and all
series of
Parity Stock upon which like voting rights have been conferred and are exercisable with
respect
to such matter.
Section 3. Dividends.
(a) Rate. Holders of Designated Preferred Stock shall be entitled to
receive, on each share of Designated Preferred Stock if, as and when declared by the Board of
Directors or any duly authorized committee of the Board of Directors, but only out of assets
legally available therefor, cumulative cash dividends with respect to each Dividend Period (as
defined below) at a rate per annum equal to the Applicable Dividend Rate on (i) the
Liquidation Amount per share of Designated Preferred Stock and (ii) the amount of accrued and
unpaid dividends for any prior Dividend Period on such share of Designated Preferred Stock, if
any. Such dividends shall begin to accrue and be cumulative from the Original Issue Date,
shall compound on each subsequent Dividend Payment Date (i.e., no dividends shall accrue on
other dividends unless and until the first Dividend Payment Date for such other dividends has
passed without such other dividends having been paid on such date) and shall be payable
quarterly in arrears on each Dividend Payment Date, commencing with the first such Dividend
Payment Date to occur at least 20 calendar days after the Original Issue Date. In the event
that any Dividend Payment Date would otherwise fall on a day that is not a Business Day, the
dividend payment due on that date will be postponed to the next day that is a Business Day and
no additional dividends will accrue as a result of that postponement. The period from and
including any Dividend Payment Date to, but excluding, the next Dividend Payment Date is a
“Dividend Period”, provided that the initial Dividend Period shall be the period from
and including the Original Issue Date to, but excluding, the next Dividend Payment Date.
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Dividends that are payable on Designated Preferred Stock in respect of any Dividend
Period shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
The amount of dividends payable on Designated Preferred Stock on any date prior to the end of
a Dividend Period, and for the initial Dividend Period, shall be computed on the basis of a
360-day year consisting of twelve 30-day months, and actual days elapsed over a 30-day month.
Dividends that are payable on Designated Preferred Stock on any Dividend Payment Date
will be payable to holders of record of Designated Preferred Stock as they appear on the
stock register of the Corporation on the applicable record date, which shall be the 15th
calendar day immediately preceding such Dividend Payment Date or such other record date fixed
by the Board of Directors or any duly authorized committee of the Board of Directors that is
not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a
“Dividend Record Date”). Any such day that is a Dividend Record Date shall be a
Dividend Record Date whether or not such day is a Business Day.
Holders of Designated Preferred Stock shall not be entitled to any dividends, whether
payable in cash, securities or other property, other than dividends (if any) declared and
payable on Designated Preferred Stock as specified in this Section 3 (subject to the other
provisions of the Certificate of Designations).
(b) Priority of Dividends. So long as any share of Designated Preferred
Stock remains outstanding, no dividend or distribution shall be declared or paid on the
Common Stock or any other shares of Junior Stock (other than dividends payable solely in
shares of Common Stock) or Parity Stock, subject to the immediately following paragraph in
the case of Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall be,
directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the
Corporation or any of its subsidiaries unless all accrued and unpaid dividends for all past
Dividend Periods, including the latest completed Dividend Period (including, if applicable as
provided in Section 3(a) above, dividends on such amount), on all outstanding shares of
Designated Preferred Stock have been or are contemporaneously declared and paid in full (or
have been declared and a sum sufficient for the payment thereof has been set aside for the
benefit of the holders of shares of Designated Preferred Stock on the applicable record
date). The foregoing limitation shall not apply to (i) redemptions, purchases or other
acquisitions of shares of Common Stock or other Junior Stock in connection with the
administration of any employee benefit plan in the ordinary course of business (including
purchases to offset the Share Dilution Amount (as defined below) pursuant to a publicly
announced repurchase plan) and consistent with past practice, provided that any purchases to
offset the Share Dilution Amount shall in no event exceed the Share Dilution Amount; (ii)
purchases or other acquisitions by a broker-dealer subsidiary of the Corporation solely for
the purpose of market-making, stabilization or customer facilitation transactions in Junior
Stock or Parity Stock in the ordinary course of its business; (iii) purchases by a
broker-dealer subsidiary of the Corporation of capital stock of the Corporation for resale
pursuant to an offering by the Corporation of such capital stock underwritten by such
broker-dealer subsidiary; (iv) any dividends or distributions of rights or Junior Stock in
connection with a stockholders’ rights plan or any redemption or repurchase of rights
pursuant to any stockholders’ rights plan; (v) the acquisition by the Corporation or any of
its subsidiaries of record ownership in Junior Stock or Parity Stock for the beneficial
ownership of any other persons (other than the Corporation or any of its subsidiaries),
including as trustees or custodians; and (vi) the exchange
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or conversion of Junior Stock for or into other Junior Stock or of Parity Stock for or into
other Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, in
each case, solely to the extent required pursuant to binding contractual agreements entered
into prior to the Signing Date or any subsequent agreement for the accelerated exercise,
settlement or exchange thereof for Common Stock. “Share Dilution Amount” means the
increase in the number of diluted shares outstanding (determined in accordance with generally
accepted accounting principles in the United States, and as measured from the date of the
Corporation’s consolidated financial statements most recently filed with the Securities and
Exchange Commission prior to the Original Issue Date) resulting from the grant, vesting or
exercise of equity-based compensation to employees and equitably adjusted for any stock split,
stock dividend, reverse stock split, reclassification or similar transaction.
When dividends are not paid (or declared and a sum sufficient for payment thereof set
aside for the benefit of the holders thereof on the applicable record date) on any Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within a Dividend Period related to
such Dividend Payment Date) in full upon Designated Preferred Stock and any shares of Parity
Stock, all dividends declared on Designated Preferred Stock and all such Parity Stock and
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the
respective amounts of such dividends declared shall bear the same ratio to each other as all
accrued and unpaid dividends per share on the shares of Designated Preferred Stock (including,
if applicable as provided in Section 3(a) above, dividends on such amount) and all Parity
Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment date falling
within the Dividend Period related to such Dividend Payment Date) (subject to their having
been declared by the Board of Directors or a duly authorized committee of the Board of
Directors out of legally available funds and including, in the case of Parity Stock that bears
cumulative dividends, all accrued but unpaid dividends) bear to each other. If the Board of
Directors or a duly authorized committee of the Board of Directors determines not to pay any
dividend or a full dividend on a Dividend Payment Date, the Corporation will provide written
notice to the holders of Designated Preferred Stock prior to such Dividend Payment Date.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, securities
or other property) as may be determined by the Board of Directors or any duly authorized
committee of the Board of Directors may be declared and paid on any securities, including
Common Stock and other Junior Stock, from time to time out of any funds legally available for
such payment, and holders of Designated Preferred Stock shall not be entitled to participate
in any such dividends.
Section 4. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary,
holders of Designated Preferred Stock shall be entitled to receive for each share of
Designated Preferred Stock, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus)
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available for distribution to stockholders of the Corporation, subject to the rights of any
creditors of the Corporation, before any distribution of such assets or proceeds is made to or
set aside for the holders of Common Stock and any other stock of the Corporation ranking
junior to Designated Preferred Stock as to such distribution, payment in full in an amount
equal to the sum of (i) the Liquidation Amount per share and (ii) the amount of any accrued
and unpaid dividends (including, if applicable as provided in Section 3(a) above, dividends on
such amount), whether or not declared, to the date of payment (such amounts collectively, the
“Liquidation Preference”).
(b) Partial Payment. If in any distribution described in Section 4(a) above the
assets of the Corporation or proceeds thereof are not sufficient to pay in full the amounts
payable with respect to all outstanding shares of Designated Preferred Stock and the
corresponding amounts payable with respect of any other stock of the Corporation ranking
equally with Designated Preferred Stock as to such distribution, holders of Designated
Preferred Stock and the holders of such other stock shall share ratably in any such
distribution in proportion to the full respective distributions to which they are entitled.
(c) Residual Distributions. If the Liquidation Preference has been paid in full
to all holders of Designated Preferred Stock and the corresponding amounts payable with
respect of any other stock of the Corporation ranking equally with Designated Preferred Stock
as to such distribution has been paid in full, the holders of other stock of the Corporation
shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof)
according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of
this Section 4, the merger or consolidation of the Corporation with any other corporation or
other entity, including a merger or consolidation in which the holders of Designated Preferred
Stock receive cash, securities or other property for their shares, or the sale, lease or
exchange (for cash, securities or other property) of all or substantially all of the assets of
the Corporation, shall not constitute a liquidation, dissolution or winding up of the
Corporation.
Section 5. Redemption.
(a) Optional Redemption. Except as provided below, the Designated Preferred
Stock may not be redeemed prior to the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date. On or after the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date, the Corporation, at its
option, subject to the approval of the Appropriate Federal Banking Agency, may redeem, in
whole or in part, at any time and from time to time, out of funds legally available therefor,
the shares of Designated Preferred Stock at the time outstanding, upon notice given as
provided in Section 5(c) below, at a redemption price equal to the sum of (i) the Liquidation
Amount per share and (ii) except as otherwise provided below, any accrued and unpaid dividends
(including, if applicable as provided in Section 3(a) above, dividends on such amount)
(regardless of whether any dividends are actually declared) to, but excluding, the date fixed
for redemption.
Notwithstanding the foregoing, prior to the first Dividend Payment Date falling on or
after the third anniversary of the Original Issue Date, the Corporation, at its option,
subject to the
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approval of the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any
time and from time to time, the shares of Designated Preferred Stock at the time outstanding,
upon notice given as provided in Section 5(c) below, at a redemption price equal to the sum of
(i) the Liquidation Amount per share and (ii) except as otherwise provided below, any accrued
and unpaid dividends (including, if applicable as provided in Section 3(a) above, dividends on
such amount) (regardless of whether any dividends are actually declared) to, but excluding,
the date fixed for redemption; provided that (x) the Corporation (or any successor by Business
Combination) has received aggregate gross proceeds of not less than the Minimum Amount (plus
the “Minimum Amount” as defined in the relevant certificate of designations for each other
outstanding series of preferred stock of such successor that was originally issued to the
United States Department of the Treasury (the “Successor Preferred Stock”) in
connection with the Troubled Asset Relief Program Capital Purchase Program) from one or more
Qualified Equity Offerings (including Qualified Equity Offerings of such successor), and (y)
the aggregate redemption price of the Designated Preferred Stock (and any Successor Preferred
Stock) redeemed pursuant to this paragraph may not exceed the aggregate net cash proceeds
received by the Corporation (or any successor by Business Combination) from such Qualified
Equity Offerings (including Qualified Equity Offerings of such successor).
The redemption price for any shares of Designated Preferred Stock shall be payable on the
redemption date to the holder of such shares against surrender of the certificate(s) evidencing
such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a
redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall
not be paid to the holder entitled to receive the redemption price on the redemption date, but
rather shall be paid to the holder of record of the redeemed shares on such Dividend Record Date
relating to the Dividend Payment Date as provided in Section 3 above.
(b) No Sinking Fund. The Designated Preferred Stock will not be subject to
any mandatory redemption, sinking fund or other similar provisions. Holders of Designated
Preferred Stock will have no right to require redemption or repurchase of any shares of
Designated Preferred Stock.
(c) Notice of Redemption. Notice of every redemption of shares of Designated
Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders
of record of the shares to be redeemed at their respective last addresses appearing on the
books of the Corporation. Such mailing shall be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed as provided in this Subsection shall
be conclusively presumed to have been duly given, whether or not the holder receives such
notice, but failure duly to give such notice by mail, or any defect in such notice or in the
mailing thereof, to any holder of shares of Designated Preferred Stock designated for
redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Designated Preferred Stock. Notwithstanding the foregoing, if shares of Designated
Preferred Stock are issued in book-entry form through The Depository Trust Corporation or any
other similar facility, notice of redemption may be given to the holders of Designated
Preferred Stock at such time and in any manner permitted by such facility. Each notice of
redemption given to a holder shall state: (1) the redemption date; (2) the number of shares of
Designated Preferred Stock to be redeemed and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be
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redeemed from such holder; (3) the redemption price; and (4) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price.
(d) Partial Redemption. In case of any redemption of part of the shares of
Designated Preferred Stock at the time outstanding, the shares to be redeemed shall be
selected either pro rata or in such other manner as the Board of Directors or a duly
authorized committee thereof may determine to be fair and equitable. Subject to the provisions
hereof, the Board of Directors or a duly authorized committee thereof shall have full power
and authority to prescribe the terms and conditions upon which shares of Designated Preferred
Stock shall be redeemed from time to time. If fewer than all the shares represented by any
certificate are redeemed, a new certificate shall be issued representing the unredeemed shares
without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and
if on or before the redemption date specified in the notice all funds necessary for the
redemption have been deposited by the Corporation, in trust for the pro rata benefit of the
holders of the shares called for redemption, with a bank or trust company doing business in
the Borough of Manhattan, The City of New York, and having a capital and surplus of at least
$500 million and selected by the Board of Directors, so as to be and continue to be available
solely therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the redemption date
dividends shall cease to accrue on all shares so called for redemption, all shares so called
for redemption shall no longer be deemed outstanding and all rights with respect to such
shares shall forthwith on such redemption date cease and terminate, except only the right of
the holders thereof to receive the amount payable on such redemption from such bank or trust
company, without interest. Any funds unclaimed at the end of three years from the redemption
date shall, to the extent permitted by law, be released to the Corporation, after which time
the holders of the shares so called for redemption shall look only to the Corporation for
payment of the redemption price of such shares.
(f) Status of Redeemed Shares. Shares of Designated Preferred Stock that are
redeemed, repurchased or otherwise acquired by the Corporation shall revert to
authorized but
unissued shares of Preferred Stock (provided that any such cancelled shares of
Designated
Preferred Stock may be reissued only as shares of any series of Preferred Stock other
than
Designated Preferred Stock).
Section 6. Conversion. Holders of Designated Preferred Stock shares shall have
no right to exchange or convert such shares into any other securities.
Section 7. Voting Rights.
(a) General. The holders of Designated Preferred Stock shall not have any voting
rights except as set forth below or as otherwise from time to time required by law.
(b) Preferred Stock Directors. Whenever, at any time or times, dividends payable
on the shares of Designated Preferred Stock have not been paid for an aggregate of six
quarterly Dividend Periods or more, whether or not consecutive, the authorized number of
directors of the Corporation shall automatically be increased by two and the holders of the
Designated Preferred Stock shall have the right, with holders of shares of any one or more
other classes or series of
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Voting Parity Stock outstanding at the time, voting together as a class, to elect two
directors (hereinafter the “Preferred Directors” and each a “Preferred
Director”) to fill such newly created directorships at the Corporation’s next annual
meeting of stockholders (or at a special meeting called for that purpose prior to such next
annual meeting) and at each subsequent annual meeting of stockholders until all accrued and
unpaid dividends for all past Dividend Periods, including the latest completed Dividend Period
(including, if applicable as provided in Section 3(a) above, dividends on such amount), on all
outstanding shares of Designated Preferred Stock have been declared and paid, in full at which
time such right shall terminate with respect to the Designated Preferred Stock, except as
herein or by law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned; provided that it shall be a
qualification for election for any Preferred Director that the election of such Preferred
Director shall not cause the Corporation to violate any corporate governance requirements of
any securities exchange or other trading facility on which securities of the Corporation may
then be listed or traded that listed or traded companies must have a majority of independent
directors. Upon any termination of the right of the holders of shares of Designated Preferred
Stock and Voting Parity Stock as a class to vote for directors as provided above, the
Preferred Directors shall cease to be qualified as directors, the term of office of all
Preferred Directors then in office shall terminate immediately and the authorized number of
directors shall be reduced by the number of Preferred Directors elected pursuant hereto. Any
Preferred Director may be removed at any time, with or without cause, and any vacancy created
thereby may be filled, only by the affirmative vote of the holders a majority of the shares of
Designated Preferred Stock at the time outstanding voting separately as a class together with
the holders of shares of Voting Parity
Stock, to the extent the voting rights of such holders described above are then
exercisable. If the office of any Preferred Director becomes vacant for any reason other
than removal from office as aforesaid, the remaining Preferred Director may choose a
successor who shall hold office for the unexpired term in respect of which such vacancy
occurred.
(c) Class Voting Rights as to Particular Matters. So long as any shares of
Designated Preferred Stock are outstanding, in addition to any other vote or consent of
stockholders required by law or by the Charter, the vote or consent of the holders of at least
66 2/3% of the shares of Designated Preferred Stock at the time outstanding, voting as a
separate class, given in person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of
the Certificate of Designations for the Designated Preferred Stock or the Charter to
authorize or create or increase the authorized amount of, or any issuance of, any
shares of, or any securities convertible into or exchangeable or exercisable for shares
of, any class or series of capital stock of the Corporation ranking senior to
Designated Preferred Stock with respect to either or both the payment of dividends
and/or the distribution of assets on any liquidation, dissolution or winding up of the
Corporation;
(ii) Amendment of Designated Preferred Stock. Any amendment,
alteration or repeal of any provision of the Certificate of Designations for the
Designated Preferred Stock or the Charter (including, unless no vote on such merger or
consolidation is required by Section 7(c)(iii) below, any amendment, alteration or
repeal by means of a
GOLD SEAL APPEARS ONLY ON ORIGINAL
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merger, consolidation or otherwise) so as to adversely affect the rights,
preferences, privileges or voting powers of the Designated Preferred Stock; or
(iii)
Share Exchanges, Reclassifications, Mergers and Consolidations.
Any consummation of a binding share exchange or reclassification involving the
Designated Preferred Stock, or of a merger or consolidation of the Corporation with
another corporation or other entity, unless in each case (x) the shares of Designated
Preferred Stock remain outstanding or, in the case of any such merger or consolidation
with respect to which the Corporation is not the surviving or resulting entity, are
converted into or exchanged for preference securities of the surviving or resulting
entity or its ultimate parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights, preferences, privileges
and voting powers, and limitations and restrictions thereof, taken as a whole, as are
not materially less favorable to the holders thereof than the rights, preferences,
privileges and voting powers, and limitations and restrictions thereof, of Designated
Preferred Stock immediately prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 7(c), any increase in the amount of
the authorized Preferred Stock, including any increase in the authorized amount of Designated
Preferred Stock necessary to satisfy preemptive or similar rights granted by the Corporation
to other persons prior to the Signing Date, or the creation and issuance, or an increase in
the authorized or issued amount, whether pursuant to preemptive or similar rights or
otherwise, of any other series of Preferred Stock, or any securities convertible into or
exchangeable or exercisable for any other series of Preferred Stock, ranking equally with
and/or junior to Designated Preferred Stock with respect to the payment of dividends
(whether such dividends are cumulative or non-cumulative) and the distribution of assets upon
liquidation, dissolution or winding up of the Corporation will not be deemed to adversely
affect the rights, preferences, privileges or voting powers, and shall not require the
affirmative vote or consent of, the holders of outstanding shares of the Designated Preferred
Stock.
(d) Changes after Provision for Redemption. No vote or consent of the holders of
Designated Preferred Stock shall be required pursuant to Section 7(c) above if, at or prior to
the time when any such vote or consent would otherwise be required pursuant to such Section,
all outstanding shares of the Designated Preferred Stock shall have been redeemed, or shall
have been called for redemption upon proper notice and sufficient funds shall have been
deposited in trust for such redemption, in each case pursuant to Section 5 above.
(e) Procedures for Voting and Consents. The rules and procedures for calling and
conducting any meeting of the holders of Designated 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 of the Board of
Directors or any duly authorized committee of the Board of Directors, in its discretion, may
adopt from time to time, which rules and procedures shall conform to the requirements of the
Charter, the Bylaws, and applicable law and the rules of any national securities exchange or
other trading facility on which Designated Preferred Stock is listed or traded at the time.
GOLD SEAL APPEARS ONLY ON ORIGINAL
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Section 8. Record Holders. To the fullest extent permitted by applicable law,
the Corporation and the transfer agent for Designated Preferred Stock may deem and treat the
record holder of any share of Designated Preferred Stock as the true and lawful owner thereof
for all purposes, and neither the Corporation nor such transfer agent shall be affected by
any notice to the contrary.
Section 9. Notices. All notices or communications in respect of Designated Preferred
Stock shall be sufficiently given if given in writing and delivered in person or by first
class mail, postage prepaid, or if given in such other manner as may be permitted in this
Certificate of Designations, in the Charter or Bylaws or by applicable law. Notwithstanding
the foregoing, if shares of Designated Preferred Stock are issued in book-entry form through
The Depository Trust Corporation or any similar facility, such notices may be given to the
holders of Designated Preferred Stock in any manner permitted by such facility.
Section 10. No Preemptive Rights. No share of Designated Preferred Stock shall
have any rights of preemption whatsoever as to any securities of the Corporation, or any
warrants, rights or options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or granted.
Section 11. Replacement Certificates. The Corporation shall replace any
mutilated certificate at the holder’s expense upon surrender of that certificate to the
Corporation. The Corporation shall replace certificates that become destroyed, stolen or lost
at the holder’s expense upon delivery to the Corporation of reasonably satisfactory evidence
that the certificate has been destroyed, stolen or lost, together with any indemnity that may
be reasonably required by the Corporation.
Section 12. Other Rights. The shares of Designated Preferred Stock shall not
have any rights, preferences, privileges or voting powers or relative, participating,
optional or other special rights, or qualifications, limitations or restrictions thereof,
other than as set forth herein or in the Charter or as provided by applicable law.
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MICHIGAN DEPARTMENT OF ENERGY, LABOR & ECONOMIC GROWTH
BUREAU OF COMMERCIAL SERVICES
BUREAU OF COMMERCIAL SERVICES
Date Received
Name |
Effective Date: | |
Douglas S. Parker c/o Dykema Gossett PLLC |
||
Address 39577 Woodward Avenue, Suite 300 |
City
|
State | ZipCode | ||||||
Bloomfield Hills
|
MI | 48304 | ||||||
Document will be returned to the name and address entered above.
CERTIFICATE
OF AMENDMENT TO THE ARTICLES OF INCORPORATION
For use by Domestic Profit and Nonprofit Corporations
For use by Domestic Profit and Nonprofit Corporations
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation executes
the following Certificate:
| 1. | The present name of the corporation is: Citizens Republic Bancorp, Inc. | |
| 2. | The identification number assigned by the Bureau is: 031-208 | |
| 3. | Article III of the Articles of Incorporation is hereby amended so that the initial section (excluding the certificates of designations) reads as follows: |
| The total authorized capital stock is: |
| Common shares 1,050,000,000 No Par Value | |||
| Preferred shares 5,000,000 No Par Value |
| 4. | The foregoing amendment to the Articles of Incorporation proposed by the board was duly adopted on the 16th day of September, 2009, by the shareholders at a meeting in accordance with Section 611(3) of the Michigan Business Corporation Act. Signed this 16th day of September, 2009 |
Signed this 16th day of September, 2009
| By: | /s/ Thomas W. Gallagher | |||
| Thomas W. Gallagher | ||||
| Executive Vice President, General Counsel and Secretary |
||||
Name of person remitting fees:
Dykema Gossett PLLC
Preparer’s name and business telephone number:
William W. Kregel
248-203-0510
248-203-0510
Exhibit 99.1
CERTIFICATE OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
For use by Domestic Profit and Nonprofit Corporations
ARTICLES OF INCORPORATION
For use by Domestic Profit and Nonprofit Corporations
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations), the
undersigned corporation executes the following Certificate:
1. The present name of the corporation is: Citizens Republic Bancorp, Inc.
2. The identification number assigned by the Bureau is: 031-208
3. Effective at 5:00 p.m. on the date of filing of this Certificate of Amendment with the
State of Michigan (the “Effective Time”), Article III of the Articles of Incorporation is hereby
amended so that the initial section (excluding the certificates of designations) reads as follows:
“The total authorized capital stock is:
Common shares 105,000,000 No Par Value
Preferred shares 5,000,000 No Par Value”
4. The following language is hereby added to the end of Article III of the Articles of
Incorporation (before the certificates of designations):
Effective at the Effective Time, every ten outstanding shares of Common Stock will be combined
into and automatically become one fully paid and nonassessable share of outstanding Common Stock of
the Corporation (the “Reverse Stock Split”).
No fractional shares shall be issued in connection with the Reverse Stock Split. All shares
that are held by a shareholder as of the effectiveness hereof shall be aggregated and each
fractional share resulting from the Reverse Stock Split after giving effect to such aggregation
shall be cancelled. Shareholders who otherwise would be entitled to receive fractional shares of
Common Stock shall be entitled to receive cash (without interest or deduction) in lieu of such
fractional share interests upon the submission of a transmission letter by a shareholder holding
the shares in book-entry form and, where shares are held in certificated form, upon the surrender
of the shareholder’s Old Certificates (as defined below), in an amount equal to the product
obtained by multiplying (a) the closing price per share of the Common Stock as reported on the
NASDAQ Capital Market as of the date of the Effective Time (adjusted for the Reverse Stock Split),
by (b) the fraction of one share owned by the shareholder. Each certificate that immediately prior
to the Effective Time represented shares of Common Stock (“Old Certificate”), shall thereafter
represent that number of shares of Common Stock into which the shares of Common Stock represented
by the Old Certificate shall have been combined pursuant to the Reverse Stock Split, subject to the
elimination of fractional share interests as described above.
5. The foregoing amendment to the Articles of Incorporation proposed by the board was duly
adopted on the 18th day of May, 2011, by the shareholders at the annual meeting of
shareholders, where the necessary votes were cast in favor of the amendment, in accordance with
Section 611(3) of the Michigan Business Corporation Act.
| Signed this 15th day of June, 2011 |
||||
| By: | /s/ Thomas W. Gallagher | |||
| Thomas W. Gallagher | ||||
| Executive Vice President, General Counsel and Secretary |
||||
Name of person remitting fees:
Dykema Gossett PLLC
Preparer’s name and business telephone number:
John J. Collins, III
313-568-6901
Dykema Gossett PLLC
Preparer’s name and business telephone number:
John J. Collins, III
313-568-6901