DESCRIPTION OF THE REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934
As of December 31, 2020, Unity Bancorp, Inc. (“Unity”), the registrant and the registered banking holding Company or Unity Bank (“Unity Bank”) had one class of security registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), our common stock, no par value per share (“Common Stock”).
Description of Capital Stock
We are authorized by our certificate of incorporation to issue 12,500,000 shares of common stock, no par value per share, and 500,000 shares of preferred stock, the terms, rights and features of which are determined by our Board of Directors upon issuance. As of the date hereof, we have 10,456,458 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
The following description contains certain general terms of Unity’s common stock.
The holders of Unity’s common stock are entitled to dividends when, as, and if declared by the Unity board of directors out of funds legally available for the payment of dividends. Generally, New Jersey law prohibits corporations from paying dividends or any other distributions to shareholders, if after giving effect to the distribution, either the corporation would be unable to pay its debts as they become due in the usual course of its business or the corporation’s total assets would be less than its total liabilities.
The primary source of dividends paid to the Unity’s shareholders is dividends paid to Unity by Unity Bank. Thus, as a practical matter, any restrictions on the ability of Unity Bank to pay dividends will act as restrictions on the amount of funds available for payment of dividends by Unity. Under the New Jersey Banking Act of 1948, as amended, dividends may be paid by Unity Bank only if, after the payment of each such dividend, the capital stock of Unity Bank will be unimpaired and either Unity Bank will have a surplus of not less than 50% of its capital stock or the payment of such dividend will not reduce Unity Bank’s surplus. The payment of dividends is also dependent upon the Bank’s ability to maintain adequate capital ratios pursuant to applicable regulatory requirements. In addition to these explicit limitations, the federal regulatory agencies are authorized to prohibit a banking subsidiary or bank holding company from engaging in an unsafe or unsound banking practice. Depending upon the circumstances, the agencies could take the position that paying a dividend would constitute an unsafe or unsound banking practice.
The dividend rights of holders of Unity’s common stock are qualified and subject to the dividend rights of holders of Unity’s preferred stock that may be issued in the future as described below in the section titled “Preferred Stock”.
Each holder of Unity’s common stock is entitled to one vote for each share held on all matters voted upon by the shareholders, including the election of directors. There is no cumulative voting in the election of directors.
Holders of shares of Unity’s common stock are not entitled to preemptive rights with respect to any shares of the common stock that may be issued.
In the event of any liquidation, dissolution or winding up of the affairs of Unity, subject to the rights and preferences, if any, of the holders of preferred stock, holders of Unity’s common stock are entitled to share, ratably in proportion to the number of shares of common stock held by them, in the remaining assets of Unity available for distribution to its shareholders.