Attached files
file | filename |
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10-Q - MB FINANCIAL, INC. 093009 10-Q - MB FINANCIAL INC /MD | mbfi093309_10q.htm |
EX-32 - SECTION 1350 CERTIFICATIONS - MB FINANCIAL INC /MD | exhibit32.htm |
EX-31.2 - CERTIFICATION - CHIEF FINANCIAL OFFICER - MB FINANCIAL INC /MD | exhibit31_2.htm |
EX-31.1 - CERTIFICATION - CHIEF EXECUTIVE OFFICER - MB FINANCIAL INC /MD | exhibit31_1.htm |
EX-10.5A - COMPENSATION AMENDMENT AND WAIVER AGREEMENT - MB FINANCIAL INC /MD | exhibit10_5a.htm |
EX-10.18B - PERFORMANCE-BASED RESTRICTED STOCK AGREEMENT - MB FINANCIAL INC /MD | exhibit10_18b.htm |
Exhibit
3.1
MB
FINANCIAL, INC.
ARTICLES
OF AMENDMENT
MB
Financial, Inc., a Maryland corporation, having its principal office in the
State of Maryland in Baltimore, Maryland (which is hereinafter called the
“Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The
Charter of the Corporation is hereby amended by changing the first two sentences
of Section A of Article 5 to read as follows:
“ARTICLE 5.
A. Capital Stock. The total number of shares of
capital stock of all classes which the Corporation has authority to issue is
seventy-one million (71,000,000) shares, classified as follows:
1. One million
(1,000,000) shares of preferred stock, par value one cent ($.01) per share (the
“Preferred Stock”); and
2. Seventy
million (70,000,000) shares of common stock, par value one cent ($.01) per share
(the “Common Stock”).
The
aggregate par value of all the authorized shares of capital stock is seven
hundred ten thousand dollars ($710,000).”
SECOND: The
amendment to the Charter of the Corporation as set forth above was approved by a
majority of the entire Board of Directors of the Corporation. The
amendment is limited to a change expressly authorized by Section 2-105(a)(12) of
the Maryland General Corporation Law (the “MGCL”) to be made without action by
the Corporation’s stockholders.
THIRD: Immediately
before the amendment to the Charter of the Corporation as set forth above, the
total number of shares of capital stock of all classes which the Corporation had
authority to issue was fifty-one million (51,000,000), with one million
(1,000,000) of such shares classified as preferred stock, par value one cent
($.01) per share, and fifty million (50,000,000) of such shares classified as
common stock, par value one cent ($.01) per share, and the aggregate par value
of all the authorized shares of capital stock was five hundred ten thousand
dollars ($510,000). As amended by the amendment to the Charter of the
Corporation set forth above, the total number of shares of capital stock of all
classes which the Corporation has authority to issue is seventy-one million
(71,000,000), with one million (1,000,000) of such shares classified as
preferred stock, par value one cent ($.01) per share, and seventy million
(70,000,000) of such shares classified as common stock, par value one cent
($.01) per share, and the aggregate par value of all the authorized shares of
capital stock is seven hundred ten thousand dollars ($710,000).
FOURTH: The
information required by Section 2-607(b)(2)(i) of the MGCL was not changed by
the amendment to the Charter of the Corporation as set forth above.
FIFTH: The
undersigned President and Chief Executive Officer acknowledges these Articles of
Amendment to be the corporate act of the Corporation and as to all matters or
facts required to be verified under oath, the undersigned President and Chief
Executive Officer acknowledges that to the best of his knowledge, information
and belief these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the
Corporation has caused these Articles of Amendment to by signed in its name and
on its behalf by its President and Chief Executive Officer and attested to by
its Vice President and Secretary as of the 14th day of September,
2009.
ATTEST:
|
MB FINANCIAL,
INC.
|
|||
/s/Doria L. Koros
|
/s/Mitchell Feiger
|
|||
Doria
L.
Koros
|
Mitchell
Feiger
|
|||
Vice
President and Secretary
|
President
and Chief Executive Officer
|
MB
FINANCIAL, INC.
ARTICLES
OF AMENDMENT
MB
Financial, Inc., a Maryland corporation, having its principal office in the
State of Maryland in Baltimore, Maryland (which is hereinafter called the
“Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The
Charter of the Corporation is hereby amended as follows:
(1) Section
D of Article 7 of the Charter is amended to read in its entirety as
follows:
“D. Removal. Subject to the
rights of the holders of any class or series of Preferred Stock or Other Stock
then outstanding, any director, or the entire Board of Directors, may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of a majority of the voting power of all of the then-outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (after giving effect to the provisions of Article 5
hereof) voting together as a single class.”
(2) Article
8 of the Charter is amended to read in its entirety as follows:
“ARTICLE 8. By-laws. The Board
of Directors is expressly empowered to adopt, amend or repeal the By-laws of the
Corporation. Except as otherwise provided in the By-laws of the
Corporation, any adoption, amendment or repeal of the By-laws of the Corporation
by the Board of Directors shall require the approval of a majority of the Whole
Board. The stockholders shall also have power to adopt, amend or repeal the
By-laws of the Corporation. In addition to any vote of the holders of any class
or series of stock of the Corporation required by law or by the Charter, the
affirmative vote of the holders of a majority of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (after giving effect to the provisions of
Article 5 hereof), voting together as a single class, shall be required for the
adoption, amendment or repeal of any provisions of the By-laws of the
Corporation by the stockholders.”
(3) Section
A of Article 9 of the Charter is amended to read in its entirety as
follows:
“A.Voting Requirement; Business
Combination Defined. In addition to any affirmative vote required by law
or by the Charter, and except as otherwise expressly provided in this
Section:
1. any
merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (a) any Interested Stockholder (as hereinafter defined) or (b) any
other corporation (whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
2. any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Stockholder,
or any Affiliate of any Interested Stockholder, of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value (as hereafter defined)
equaling or exceeding 25% or more of the combined assets of the Corporation and
its Subsidiaries; or
3. the
issuance or transfer by the Corporation or any Subsidiary (in one transaction or
a series of transactions) of any securities of the Corporation or any Subsidiary
to any Interested Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value equaling or exceeding 25% of the combined
assets of the Corporation and its Subsidiaries except pursuant to an employee
benefit plan of the Corporation or any Subsidiary thereof; or
4. the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
5. any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder;
shall
require the affirmative vote of the holders of a majority of the voting power of
the then-outstanding shares of stock of the Corporation entitled to vote in the
election of directors (the “Voting Stock”) that is not beneficially owned (as
defined in Section C of this Article 9) by the Interested Stockholder in
question (after giving effect to the provisions of Article 5 hereof), voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by any other provisions of the Charter
(including those applicable to any class or series of capital stock) or in any
agreement with any national securities exchange or quotation system or
otherwise.
The term
“Business Combination” as used in this Article 9 shall mean any transaction
which is referred to in any one or more of paragraphs 1 through 5 of Section A
of this Article 9.”
(4) The
heading in Section B of Article 9 of the Charter is hereby amended to read as
follows: “B. Exception to Voting Requirement.”
(5) Section
A of Article 11 of the Charter is amended to read in its entirety as
follows:
“A. Voting
Requirement. Except as set forth in Section B of this Article 11, in
addition to any affirmative vote of stockholders required by law or the Charter,
any direct or indirect purchase or other acquisition by the Corporation of any
Equity Security (as hereinafter defined) of any class from any Interested Person
(as hereinafter defined) shall require the affirmative vote of the holders of a
majority of the Voting Stock of the Corporation that is not beneficially owned
(for purposes of this Article 11 beneficial ownership shall be determined in
accordance with Section F.2(b) of Article 5 hereof) by such Interested Person
(after giving effect to the provisions of Article 5 hereof), voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by any other provisions of the Charter
(including those applicable to any class of securities or capital stock) or
in any agreement with any national securities exchange or quotation system, or
otherwise. Certain defined terms used in this Article 11 are as set forth in
Section C below.”
(6) Article
14 of the Charter is amended to read in its entirety as follows:
“ARTICLE 14. Amendment of the Charter. The
Corporation reserves the right to amend or repeal any provision contained in the
Charter in the manner prescribed by the MGCL, including any amendment altering
the terms or contract rights, as expressly set forth in the Charter, of any of
the Corporation’s outstanding stock by classification, reclassification or
otherwise, and all rights conferred upon stockholders are granted subject to
this reservation; provided that as
provided in Article 5, the Board of Directors, with the approval of a majority
of the entire Board of Directors and without action by the stockholders, may
amend the Charter to increase or decrease the aggregate number of shares of
stock or the number of shares of stock of any class or series that the
Corporation has authority to issue.”
SECOND: The
amendments to the Charter of the Corporation as set forth above were approved by
a majority of the entire Board of Directors of the Corporation and approved by
the stockholders of the Corporation as required by law and by the Charter of the
Corporation.
THIRD: The
undersigned President and Chief Executive Officer acknowledges these Articles of
Amendment to be the corporate act of the Corporation and as to all matters or
facts required to be verified under oath, the undersigned President and Chief
Executive Officer acknowledges that to the best of his knowledge, information
and belief these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the
Corporation has caused these Articles of Amendment to by signed in its name and
on its behalf by its President and Chief Executive Officer and attested to by
its Vice President and Secretary as of the 24th day of April, 2009.
ATTEST:
|
MB
FINANCIAL, INC.
|
||
/s/
Doria L. Koros
|
By:
|
/s/
Mitchell Feiger
|
|
Doria
L. Koros
|
Mitchell
Feiger
|
||
Vice
President and Secretary
|
President
and Chief Executive Officer
|
MB
FINANCIAL, INC.
ARTICLES
OF AMENDMENT
MB
Financial, Inc., a Maryland corporation, having its principal office in the
State of Maryland in Baltimore, Maryland (which is hereinafter called the
“Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The
Charter of the Corporation is hereby amended by changing the first two sentences
of Section A of Article 5 to read as follows:
“ARTICLE 5.
A. Capital
Stock. The total number of shares of capital stock of all
classes which the Corporation has authority to issue is fifty-one million
(51,000,000) shares, classified as follows:
1. One
million (1,000,000) shares of preferred stock, par value one cent ($.01) per
share (the “Preferred Stock”); and
2. Fifty
million (50,000,000) shares of common stock, par value one cent ($.01) per share
(the “Common Stock”).
The
aggregate par value of all the authorized shares of capital stock is five
hundred ten thousand dollars ($510,000).”
SECOND: The
amendment to the Charter of the Corporation as set forth above was approved by a
majority of the entire Board of Directors of the Corporation. The
amendment is limited to a change expressly authorized by Section 2-105(a)(12) of
the Maryland General Corporation Law (the “MGCL”) to be made without action by
the Corporation’s stockholders.
THIRD: Immediately
before the amendment to the Charter of the Corporation as set forth above, the
total number of shares of capital stock of all classes which the Corporation had
authority to issue was forty-four million (44,000,000), with one million
(1,000,000) of such shares classified as preferred stock, par value one cent
($.01) per share, and forty-three million (43,000,000) of such shares classified
as common stock, par value one cent ($.01) per share, and the aggregate par
value of all the authorized shares of capital stock was four hundred forty
thousand dollars ($440,000). As amended by the amendment to the
Charter of the Corporation set forth above, the total number of shares of
capital stock of all classes which the Corporation has authority to issue is
fifty-one million (51,000,000), with one million (1,000,000) of such shares
classified as preferred stock, par value one cent ($.01) per share, and fifty
million (50,000,000) of such shares classified as common stock, par value one
cent ($.01) per share, and the aggregate par value of all the authorized shares
of capital stock is five hundred ten thousand dollars ($510,000).
FOURTH: The
information required by Section 2-607(b)(2)(i) of the MGCL was not changed by
the amendment to the Charter of the Corporation as set forth above.
FIFTH: The
undersigned President and Chief Executive Officer acknowledges these Articles of
Amendment to be the corporate act of the Corporation and as to all matters or
facts required to be verified under oath, the undersigned President and Chief
Executive Officer acknowledges that to the best of his knowledge, information
and belief these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the
Corporation has caused these Articles of Amendment to by signed in its name and
on its behalf by its President and Chief Executive Officer and attested to by
its Secretary as of the 5th day of December, 2008.
ATTEST:
|
MB
FINANCIAL, INC.
|
||
/s/
Doria L. Koros
|
By:
|
/s/
Mitchell Feiger
|
|
Doria
L. Koros
|
Mitchell
Feiger
|
||
Secretary
|
President
and Chief Executive Officer
|
MB
FINANCIAL, INC.
ARTICLES
OF AMENDMENT
MB
Financial, Inc., a Maryland corporation, having its principal office in the
State of Maryland in Baltimore, Maryland (which is hereinafter called the
“Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The
Charter of the Corporation is hereby amended by changing the first two sentences
of Section A of Article 5 to read as follows:
“ARTICLE 5.
A. Capital
Stock. The total number of shares of capital stock of all
classes which the Corporation has authority to issue is forty-four million
(44,000,000) shares, classified as follows:
1. One
million (1,000,000) shares of preferred stock, par value one cent ($.01) per
share (the “Preferred Stock”); and
2. Forty-three
million (43,000,000) shares of common stock, par value one cent ($.01) per share
(the “Common Stock”).
The
aggregate par value of all the authorized shares of capital stock is four
hundred forty thousand dollars ($440,000).”
SECOND: The
amendment to the Charter of the Corporation as set forth above was approved by a
majority of the entire Board of Directors of the Corporation. The
amendment is limited to a change expressly authorized by Section 2-105(a)(12) of
the Maryland General Corporation Law (the “MGCL”) to be made without action by
the Corporation’s stockholders.
THIRD: Immediately
before the amendment to the Charter of the Corporation as set forth above, the
total number of shares of capital stock of all classes which the Corporation had
authority to issue was forty-one million (41,000,000), with one million
(1,000,000) of such shares classified as preferred stock, par value one cent
($.01) per share, and forty million (40,000,000) of such shares classified as
common stock, par value one cent ($.01) per share, and the aggregate par value
of all the authorized shares of capital stock was four hundred ten thousand
dollars ($410,000). As amended by the amendment to the Charter of the
Corporation set forth above, the total number of shares of capital stock of all
classes which the Corporation has authority to issue is forty-four million
(44,000,000), with one million (1,000,000) of such shares classified as
preferred stock, par value one cent ($.01) per share, and forty-three million
(43,000,000) of such shares classified as common stock, par value one cent
($.01) per share, and the aggregate par value of all the authorized shares of
capital stock is four hundred forty thousand dollars ($440,000).
FOURTH: The
information required by Section 2-607(b)(2)(i) of the MGCL was not changed by
the amendment to the Charter of the Corporation as set forth above.
FIFTH: The
undersigned President and Chief Executive Officer acknowledges these Articles of
Amendment to be the corporate act of the Corporation and as to all matters or
facts required to be verified under oath, the undersigned President and Chief
Executive Officer acknowledges that to the best of his knowledge, information
and belief these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the
Corporation has caused these Articles of Amendment to by signed in its name and
on its behalf by its President and Chief Executive Officer and attested to by
its Secretary as of the 25th day of April, 2007.
ATTEST:
|
MB
FINANCIAL, INC.
|
||
/s/
Doria L. Koros
|
By:
|
/s/
Mitchell Feiger
|
|
Doria
L. Koros
|
Mitchell
Feiger
|
||
Secretary
|
President
and Chief Executive Officer
|
ARTICLES
OF MERGER
between
MB-MIDCITY,
INC.
(a
Maryland corporation)
and
MB
FINANCIAL, INC.
(a
Delaware corporation)
MB-MIDCITY,
INC., a corporation duly organized and existing under the laws of the State of
Maryland (“MB-MIDCITY”),
and MB FINANCIAL, INC., a corporation duly organized and existing under the laws
of the State of Delaware (“MB
FINANCIAL”), do hereby certify that:
FIRST: MB-MIDCITY and MB
FINANCIAL agree to merge.
SECOND:
The name and place of incorporation of each party to these Articles are
MB-MIDCITY, INC., a Maryland corporation, and MB FINANCIAL, INC., a Delaware
corporation. MB-MIDCITY shall survive the merger as the successor
corporation under the name, by virtue of Article FIFTH of these Articles, “MB
FINANCIAL, INC.” as a corporation of the State of Maryland.
THIRD:
MB-MIDCITY has its principal office in the State of Maryland in
Baltimore City. MB FINANCIAL has no principal office in the State of
Maryland. MB FINANCIAL was incorporated on June 21, 1993 under the
general laws of the State of Delaware. MB FINANCIAL is not registered
or qualified to do business in the State of Maryland. MB FINANCIAL
does not own an interest in land in the State of Maryland.
FOURTH:
The terms and conditions of the transaction set forth in these Articles
were advised, authorized, and approved by each corporation party to these
Articles in the manner and by the vote required by its Charter or Certificate of
Incorporation and the laws of the state of its incorporation. The
manner of approval was as follows:
(a) The
Board of Directors of MB-MIDCITY, by unanimous written consent dated July 2,
2001 signed by all the directors and filed with the minutes of proceedings of
the Board of Directors of MB-MIDCITY, adopted resolutions which declared that
the proposed merger was advisable and approved the proposed merger on
substantially the terms and conditions set forth or referred to in the
resolutions and directed that the proposed merger be submitted to the
stockholders of MB-MIDCITY for their consideration and approval.
(b) By
written consent dated November 2, 2001 signed by all the stockholders of
MB-MIDCITY entitled to vote on the proposed merger and filed with the minutes of
proceedings of the stockholders of MB-MIDCITY, the proposed merger was approved
by the stockholders of MB-MIDCITY.
(c) The
Board of Directors of MB FINANCIAL, at a meeting held on April 9, 2001, adopted
resolutions which declared that the proposed merger was advisable on
substantially the terms and conditions set forth or referred to in the
resolutions and directed that the agreement for the proposed merger be submitted
to the stockholders of MB FINANCIAL for their adoption.
(d) The
agreement for the proposed merger was adopted by the stockholders of MB
FINANCIAL at a special meeting of stockholders held, after appropriate notice,
on November 6, 2001 by the affirmative vote of the holders of a majority of the
outstanding shares entitled to be voted thereon.
FIFTH:
The following amendment to the Charter of MB-MIDCITY is to be effected as
a part of the merger:
Article 1
of the Charter is amended in its entirety to read as follows:
“Article
1. Name. The name of the corporation is MB Financial, Inc. (herein
the “Corporation”).”
SIXTH:
The total number of shares of stock of all classes which MB-MIDCITY or MB
FINANCIAL, respectively, has authority to issue, the number of shares of stock
of each class which MB-MIDCITY or MB FINANCIAL, respectively, has authority to
issue, and the par value of the shares of each class which MB-MIDCITY or MB
FINANCIAL, respectively, has authority to issue, are as follows:
(a) The
total number of shares of stock of all classes which MB-MIDCITY has authority to
issue is 41,000,000 shares, 40,000,000 of which are classified as
common stock (par value $.01 per share) and 1,000,000 of which are classified as
preferred stock (par value $.01 per share). The aggregate par value
of all the shares of stock of all classes of MB-MIDCITY is
$410,000.
(b) The
total number of shares of stock of all classes which MB FINANCIAL has authority
to issue is 21,000,000 shares, 20,000,000 of which are classified as common
stock (par value $.01 per share) and 1,000,000 of which are
classified as preferred stock (par value $.01 per share). The
aggregate par value of all the shares of stock of all classes of MB FINANCIAL is
$210,000.
SEVENTH:
The merger does not change the authorized stock of
MB-MIDCITY.
EIGHTH:
The manner and basis of converting or exchanging issued stock of the merging
corporations into different stock of a corporation, for other consideration and
the treatment of any issued stock of the merging corporations not to be
converted or exchanged are as follows:
(a) The
issued and outstanding shares of the common stock of MB-MIDCITY owned by MB
FINANCIAL and MidCity Financial Corporation, a Delaware corporation (“MidCity”),
immediately prior to the effective time of the merger shall, at the effective
time of the merger and without further act, be cancelled.
(b) Each
issued and outstanding share of the common stock of MB FINANCIAL prior to the
effective time of the merger, except for shares of MB FINANCIAL common stock
owned, directly or indirectly, by MB FINANCIAL or MidCity or any of their
respective wholly owned subsidiaries (other than (i) shares of MB FINANCIAL
common stock held, directly or indirectly, in trust accounts, managed accounts
and the like, or otherwise held in a fiduciary capacity, that are beneficially
owned by third parties (any such shares, whether held directly or indirectly by
MB FINANCIAL or MidCity, as the case may be, being referred to herein as “Trust
Account Shares”) and (ii) shares of MB FINANCIAL common stock held on account of
a debt previously contracted (“DPC Shares”)), shall, at the effective time of
the merger and without further act, be converted into the right to receive one
share of the common stock of MB-MIDCITY.
(c) As
soon as practicable following the effective time of the merger, each holder of
issued and outstanding shares of the common stock of MB FINANCIAL (other than
shares cancelled in the manner described in paragraph (d) of this Article
EIGHTH) shall be entitled to surrender to MB-MIDCITY the certificate(s)
representing the shares of common stock of MB FINANCIAL held by such holder
immediately prior to the effective time of the merger, and, upon such surrender,
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of common stock of MB-MIDCITY deliverable in
respect thereof.
(d) At
the effective time of the merger, all shares of the common stock of MB FINANCIAL
that are owned, directly or indirectly, by MB FINANCIAL, MidCity or any of their
respective wholly owned subsidiaries (other than Trust Account Shares and DPC
shares) shall be cancelled and shall cease to exist and no stock of MB-MIDCITY
or other consideration shall be delivered in exchange therefor.
NINTH:
The merger shall become effective at 5:01 P.M. Eastern time on November 6,
2001.
IN
WITNESS WHEREOF, MB-MIDCITY, INC. has caused these Articles of Merger to be
signed in its name and on its behalf by its president and witnessed by its
secretary on November 6, 2001.
WITNESS:
|
MB
FINANCIAL, INC.
|
||
(a
Maryland corporation)
|
|||
/s/
Doria L. Koros
|
By:
|
/s/
Mitchell Feiger
|
|
Doria
L. Koros
|
Mitchell
Feiger
|
||
Vice
President and Secretary
|
President
and Chief Executive Officer
|
THE
UNDERSIGNED, President and Chief Executive Officer of MB-MIDCITY, INC., who
executed on behalf of said Corporation the foregoing Articles of Merger of which
this certificate is made a part, hereby acknowledges in the name and on behalf
of said Corporation the foregoing Articles of Merger to be the corporate act of
said Corporation and hereby certifies that to the best of his knowledge,
information and belief the matters and facts set forth therein with respect to
the authorization and approval thereof are true in all material respects under
the penalties of perjury.
By:
|
/s/ Mitchell
Feiger
|
||
Mitchell
Feiger, President and
|
|||
Chief
Executive Officer
|
|||
IN
WITNESS WHEREOF, MB FINANCIAL, INC. has caused these Articles of Merger to be
signed in its name and on its behalf by its president and witnessed by its
secretary on November 6, 2001.
WITNESS:
|
MB
FINANCIAL, INC.
|
||
(a
Delaware corporation)
|
|||
/s/
Doria L. Koros
|
By:
|
/s/
Mitchell Feiger
|
|
Doria
L. Koros, Secretary
|
Mitchell
Feiger
|
||
President
and Chief Executive Officer
|
THE
UNDERSIGNED, President and Chief Executive Officer of MB FINANCIAL, INC., who
executed on behalf of said Corporation the foregoing Articles of Merger of which
this certificate is made a part, hereby acknowledges in the name and on behalf
of said Corporation the foregoing Articles of Merger to be the corporate act of
said Corporation and hereby certifies that to the best of his knowledge,
information and belief the matters and facts set forth therein with respect to
the authorization and approval thereof are true in all material respects under
the penalties of perjury.
By:
|
/s/ Mitchell
Feiger
|
||
Mitchell
Feiger, President and
|
|||
Chief
Executive Officer
|
|||
MB-MIDCITY,
INC.
ARTICLES
OF AMENDMENT AND RESTATEMENT
MB-MidCity,
Inc., a Maryland Corporation, having its principal office in the State of
Maryland in Baltimore, Maryland (which is hereinafter called the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
The Charter of the Corporation is hereby amended and restated in its entirety to
read as follows:
ARTICLE
1. Name. The name of the corporation is MB-MidCity,
Inc. (herein the "Corporation").
ARTICLE 2. Principal
Office. The address of the principal office of the Corporation
in the State of Maryland is c/o The Corporation Trust Incorporated, 300 East
Lombard Street, Baltimore, Maryland 21202.
ARTICLE
3. Purpose. The purpose for which the Corporation
is formed is to engage in any lawful act or activity for which corporations may
be organized under the general laws of the State of Maryland as now or hereafter
in force.
ARTICLE 4. Resident
Agent. The name and address of the registered agent of the
Corporation in the State of Maryland is The Corporation Trust Incorporated, 300
East Lombard Street, Baltimore, Maryland 21202. Said resident agent
is a Maryland corporation.
ARTICLE
5.
A. Capital
Stock. The total number of shares of capital stock of all
classes which the Corporation has authority to issue is forty-one million
(41,000,000) shares, initially classified as follows:
1. One
million (1,000,000) shares of preferred stock, par value one cent ($.01) per
share (the "Preferred Stock"); and
2. Forty
million (40,000,000) shares of common stock, par value one cent ($.01) per share
(the "Common Stock").
The
aggregate par value of all the authorized shares of capital stock is four
hundred ten thousand dollars ($410,000). Except to the extent
required by governing law, rule or regulation, the shares of capital stock may
be issued from time to time by the Board of Directors without further approval
of the stockholders of the Corporation. The Corporation shall have
the authority to purchase its capital stock out of funds lawfully available
therefor which funds shall include, without limitation, the Corporation's
unreserved and unrestricted capital surplus. If shares of one class
of stock are classified or reclassified into shares of another class of stock by
the Board of Directors pursuant to this Article 5, the number of authorized
shares of the former class shall be automatically decreased and the number of
shares of the latter class shall be automatically increased, in each case by the
number of shares so classified or reclassified, so that the aggregate number of
shares of stock of all classes that the Corporation has authority to issue shall
not be more than the total number of shares of stock set forth in the first
sentence of this paragraph. The Board of Directors, with the approval
of a majority of the entire Board of Directors and without action by the
stockholders, may amend the Charter to increase or decrease the aggregate number
of shares of stock or the number of shares of stock of any class or series that
the Corporation has authority to issue.
B. Reclassification of
Capital Stock. The Board of Directors may classify or
reclassify any unissued shares of capital stock from time to time into one or
more classes or series of stock by setting or changing in one or more respects
the preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or terms and conditions of
redemption of such shares.
C. Common
Stock. Except as provided under the terms of any stock
classified or reclassified by the Board of Directors pursuant to this Article 5
and as limited by Section F of this Article 5, the exclusive voting power shall
be vested in the Common Stock, the holders thereof being entitled to one vote
for each share of such Common Stock standing in the holder's name on the books
of the Corporation. Subject to any rights and preferences of any
class of stock having preferences over the Common Stock, holders of Common Stock
shall be entitled to such dividends as may be declared by the Board of Directors
out of funds lawfully available therefor. Upon any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, holders of Common Stock shall be entitled to receive pro rata
the remaining assets of the Corporation after payment or provision for payment
of all debts and liabilities of the Corporation and payment or provision for
payment of any amounts owed to the holders of any class of stock having
preference over the Common Stock on distributions on liquidation, dissolution or
winding up of the Corporation.
D. Preferred Stock and
Other Stock. Subject to the foregoing, the power of the Board
of Directors to classify and reclassify any of the shares of capital stock shall
include, without limitation, subject to the provisions of the Charter, authority
to classify or reclassify any unissued shares of such stock into a class or
classes of Preferred Stock, preference stock, special stock or other stock (such
preference, special or other stock being collectively referred to as "Other
Stock"), and to divide and classify shares of any class into one or more series
of such class, by determining, fixing, or altering one or more of the
following:
1. The
distinctive designation of such class or series and the number of shares to
constitute such class or series; provided that, unless otherwise prohibited by
the terms of such or any other class or series, the number of shares of any
class or series may be decreased by the Board of Directors in connection with
any classification or reclassification of unissued shares and the number of
shares of such class or series may be increased by the Board of Directors in
connection with any such classification or reclassification, and any shares of
any class or series which have been redeemed, purchased, otherwise acquired or
converted into shares of Common Stock or any other class or series shall become
part of the authorized capital stock and be subject to classification and
reclassification as provided in this sub-paragraph.
2. Whether
or not and, if so, the rates, amounts and times at which, and the conditions
under which, dividends shall be payable on shares of such class or series,
whether any such dividends shall rank senior or junior to or on a parity with
the dividends payable on any other class or series of stock, and the status of
any such dividends as cumulative, cumulative to a limited extent or
non-cumulative and as participating or non-participating.
3. Whether
or not shares of such class or series shall have voting rights, in addition to
any voting rights provided by law and, if so, the terms of such voting
rights.
4. Whether
or not shares of such class or series shall have conversion or exchange
privileges and, if so, the terms and conditions thereof, including provision for
adjustment of the conversion or exchange rate in such events or at such times as
the Board of Directors shall determine.
5. Whether
or not shares of such class or series shall be subject to redemption
and, if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates; and whether or not there shall be any sinking
fund or purchase account in respect thereof, and if so, the terms
thereof.
6. The
rights of the holders of shares of such class or series upon the liquidation,
dissolution or winding up of the affairs of, or upon any distribution of the
assets of, the Corporation, which rights may vary depending upon whether such
liquidation, dissolution or winding up is voluntary or involuntary and, if
voluntary, may vary at different dates, and whether such rights shall rank
senior or junior to or on a parity with such rights of any other class or series
of stock.
7. Whether
or not there shall be any limitations applicable, while shares of such class or
series are outstanding, upon the payment of dividends or making of distributions
on, or the acquisition of, or the use of moneys for purchase or redemption of,
any stock of the Corporation, or upon any other action of the Corporation,
including action under this sub-paragraph, and, if so, the terms and conditions
thereof.
8. Any
other preferences, rights, restrictions, including restrictions on
transferability, and qualifications of shares of such class or series, not
inconsistent with law and the Charter.
E. Ranking of Capital
Stock. For the purposes hereof and of any articles
supplementary to the Charter providing for the classification or
reclassification of any shares of capital stock or of any other Charter document
of the Corporation (unless otherwise provided in any such articles or document),
any class or series of stock of the Corporation shall be deemed to
rank:
1. prior
to another class or series either as to dividends or upon liquidation, if the
holders of such class or series shall be entitled to the receipt of dividends or
of amounts distributable on liquidation, dissolution or winding up, as the case
may be, in preference or priority to holders of such other class or
series;
2. on
a parity with another class or series either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation price per share thereof be different from those of
such others, if the holders of such class or series of stock shall be entitled
to receipt of dividends or amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in proportion to their respective dividend
rates or redemption or liquidation prices, without preference or priority over
the holders of such other class or series; and
3. junior
to another class or series either as to dividends or upon liquidation, if the
rights of the holders of such class or series shall be subject or subordinate to
the rights of the holders of such other class or series in respect of the
receipt of dividends or the amounts distributable upon liquidation, dissolution
or winding up, as the case may be.
F. Restrictions
on Voting Rights of the Corporation's
Equity Securities.
1. Notwithstanding
any other provision of the Charter, in no event shall any record owner of any
outstanding Common Stock which is beneficially owned, directly or indirectly, by
a person who, as of any record date for the determination of stockholders
entitled to vote on any matter, beneficially owns in excess of 14.9% of the
then-outstanding shares of Common Stock (the "Limit"), be entitled, or permitted
to any vote in respect of the shares held in excess of the Limit. The
number of votes which may be cast by any record owner by virtue of the
provisions hereof in respect of Common Stock beneficially owned by such person
owning shares in excess of the Limit shall be a number equal to the total number
of votes which a single record owner of all Common Stock owned by such person
would be entitled to cast after giving effect to the provisions hereof,
multiplied by a fraction, the numerator of which is the number of shares of such
class or series beneficially owned by such person and owned of record by such
record owner and the denominator of which is the total number of shares of
Common Stock beneficially owned by such person owning shares in excess of the
Limit.
2. The
following definitions shall apply to this Section F of this Article
5.
(a) An
"affiliate" of a specified person shall mean a person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the person specified.
(b) "Beneficial
ownership" shall be determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934 (or any successor rule or
statutory provision), or, if said Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to said Rule 13d-3
as in effect on December 31, 2000; provided, however,
that a person shall, in any event, also be deemed the "beneficial owner" of any
Common Stock:
(1) which
such person or any of its affiliates beneficially owns, directly or indirectly;
or
(2) which
such person or any of its affiliates has (i) the right to acquire (whether such
right is exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding (but shall not be deemed to be the
beneficial owner of any voting shares solely by reason of an agreement,
contract, or other arrangement with the Corporation to effect any transaction
which is described in any one or more of the clauses of Section A of Article 9
hereof) or upon the exercise of conversion rights, exchange rights, warrants, or
options or otherwise, or (ii) sole or shared voting or investment power with
respect thereto pursuant to any agreement, arrangement, understanding,
relationship or otherwise (but shall not be deemed to be the beneficial owner of
any voting shares solely by reason of a revocable proxy granted for a particular
meeting of stockholders, pursuant to a public solicitation of proxies for such
meeting, with respect to shares of which neither such person nor any such
affiliate is otherwise deemed the beneficial owner); or
(3) which
are beneficially owned, directly or indirectly, by any other person with which
such first mentioned person or any of its affiliates acts as a partnership,
limited partnership, syndicate or other group pursuant to any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation;
and
provided further, however, that (i) no director or officer of the Corporation
(or any affiliate of any such director or officer) shall, solely by reason of
any or all of such directors or officers acting in their capacities as such, be
deemed, for any purposes hereof, to beneficially own any Common Stock
beneficially owned by any other such director or officer (or any affiliate
thereof), and (ii) neither any employee stock ownership or similar plan of the
Corporation or any subsidiary of the Corporation nor any trustee with respect
thereto (or any affiliate of such trustee) shall, solely by reason of such
capacity of such trustee, be deemed, for any purposes hereof, to beneficially
own any Common Stock held under any such plan. For purposes of
computing the percentage beneficial ownership of Common Stock of a person, the
outstanding Common Stock shall include shares deemed owned by such person
through application of this subsection but shall not include any other Common
Stock which may be issuable by the Corporation pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or
otherwise. For all other purposes, the outstanding Common Stock shall
include only Common Stock then outstanding and shall not include any Common
Stock which may be issuable by the Corporation pursuant to any agreement, or
upon the exercise of conversion rights, warrants or options, or
otherwise.
(c) A
"person" shall mean any individual, firm, corporation, or other
entity.
(d) The
Board of Directors shall have the power to construe and apply the provisions of
this Section F and to make all determinations necessary or desirable to
implement such provisions, including but not limited to matters with respect to
(i) the number of shares of Common Stock beneficially owned by any person, (ii)
whether a person is an affiliate of another, (iii) whether a person has an
agreement, arrangement, or understanding with another as to the matters referred
to in the definition of beneficial ownership, (iv) the application of any other
definition or operative provision of this Section F to the given facts, or (v)
any other matter relating to the applicability or effect of this
Section.
3. The
Board of Directors shall have the right to demand that any person who is
reasonably believed to beneficially own Common Stock in excess of the Limit (or
holds of record Common Stock beneficially owned by any person in excess of the
Limit) supply the Corporation with complete information as to (i) the record
owner(s) of all shares beneficially owned by such person who is reasonably
believed to own shares in excess of the Limit, and (ii) any other factual matter
relating to the applicability or effect of this section as may reasonably be
requested of such person.
4. Except
as otherwise provided by law or expressly provided in this Section F, the
presence, in person or by proxy, of the holders of record of shares of capital
stock of the Corporation entitling the holders thereof to cast a majority of the
votes (after giving effect, if required, to the provisions of this Section F)
entitled to be cast by the holders of shares of capital stock of the Corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders,
and every reference in the Charter to a majority or other proportion of capital
stock (or the holders thereof) for purposes of determining any quorum
requirement or any requirement for stockholder consent or approval shall be
deemed to refer to such majority or other proportion of the votes (or the
holders thereof) then entitled to be cast in respect of such capital
stock.
5. Any
constructions, applications, or determinations made by the Board of Directors,
pursuant to this Section F in good faith and on the basis of such information
and assistance as was then reasonably available for such purpose, shall be
conclusive and binding upon the Corporation and its stockholders.
6. In
the event any provision (or portion thereof) of this Section F shall be found to
be invalid, prohibited or unenforceable for any reason, the remaining provisions
(or portions thereof) of this Section F shall remain in full force and effect,
and shall be construed as if such invalid, prohibited or unenforceable provision
had been stricken herefrom or otherwise rendered inapplicable, it being the
intent of the Corporation and its stockholders that each such remaining
provision (or portion thereof) of this Section F remain, to the fullest extent
permitted by law, applicable and enforceable as to all stockholders, including
stockholders owning an amount of stock over the Limit, notwithstanding any such
finding.
G. Majority
Vote. Notwithstanding any provision of law requiring the
authorization of any action by a greater proportion than a majority of the total
number of shares of all classes of capital stock or of the total number of
shares of any class of capital stock, such action shall be valid and effective
if authorized by the affirmative vote of the holders of a majority of the total
number of shares of all classes outstanding and entitled to vote thereon, except
as otherwise provided in the Charter.
ARTICLE 6. Preemptive
Rights. No holder of the capital stock of the Corporation or
series of stock or of options, warrants or other rights to purchase shares of
any class or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued capital
stock of any class or series, or any unissued bonds, certificates of
indebtedness, debentures or other securities convertible into or exchangeable
for capital stock of any class or series, or carrying any right to purchase
stock of any class or series, except such as may be established by the Board of
Directors.
ARTICLE 7. Directors.
The following provisions are inserted for the management of the business
and the conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders:
A. Management of the
Corporation. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors. All powers
of the Corporation may be exercised by or under the authority of the Board of
Directors, except as conferred on or as reserved to the stockholders by law or
by the Charter or the By-laws of the Corporation.
B. Number, Class and Terms
of Directors; Cumulative Voting. The number of directors of
the Corporation shall be 17, which number may, subject to any limitations and/or
voting requirements set forth in the By-laws of the Corporation, be increased or
decreased from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any such resolution is presented to the Board for adoption) (the
"Whole Board"); provided, however, that such number shall never be less than the
minimum number of directors permitted by the Maryland General Corporation Law
("MGCL") now or hereafter in force. The directors, other than those
who may be elected by the holders of any class or series of Preferred Stock or
Other Stock, shall be divided into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class ("Class I") to
expire at the conclusion of the first annual meeting of stockholders, the term
of office of the second class ("Class II") to expire at the conclusion of the
annual meeting of stockholders one year thereafter and the term of office of the
third class ("Class III") to expire at the conclusion of the annual meeting of
stockholders two years thereafter, with each director to hold office until his
or her successor shall have been duly elected and qualified. At each
annual meeting of stockholders, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election, with each
director to hold office until his or her successor shall have been duly elected
and qualified.
The names
of the individuals who will serve as directors of the Corporation until their
successors are elected and qualify are as follows:
(1) Class
I directors:
Burton J.
Field
Lawrence
E. Gilford
Patrick
Henry
Richard
J. Holmstrom
Clarence
Mann
Kenneth
A. Skopec
(2) Class
II directors:
Robert S.
Engelman, Jr.
Alfred
Feiger
Richard
I. Gilford
Thomas H.
Harvey
Ronald D.
Santo
Eugene
Sawyer
(3) Class
III directors:
E.M.
Bakwin
Mitchell
Feiger
James N.
Hallene
Leslie S.
Hindman
David
Husman
Stockholders
shall not be permitted to cumulate their votes in the election of
directors.
C. Vacancies. Subject
to the rights of the holders of any class or series of Preferred Stock or Other
Stock then outstanding and except as otherwise provided in the By-laws of the
Corporation, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled by a majority vote of the directors then in
office, though less than a quorum, and, by virtue of the Corporation's election
made hereby to be subject to Section 3-804(c)(3) of the MCGL, any director so
chosen shall hold office for the remainder of the full term of the class of
directors in which the vacancy occurred and until a successor is elected and
qualified. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director.
D. Removal. Subject
to the rights of the holders of any class or series of Preferred Stock or Other
Stock then outstanding, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80% of the voting power of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (after giving effect to the provisions of
Article 5 hereof) voting together as a single class.
E. Stockholder Proposals
and Nominations of Directors. Advance notice of stockholder
nominations for the election of directors and of business to be brought by
stockholders before any meeting of the stockholders of the Corporation shall be
given in the manner provided in the By-laws of the Corporation.
ARTICLE
8. By-laws. The Board of Directors is expressly
empowered to adopt, amend or repeal the By-laws of the
Corporation. Except as otherwise provided in the By-laws of the
Corporation, any adoption, amendment or repeal of the By-laws of the Corporation
by the Board of Directors shall require the approval of a majority of the Whole
Board. The stockholders shall also have power to adopt, amend or
repeal the By-laws of the Corporation. In addition to any vote of the
holders of any class or series of stock of the Corporation required by law or by
the Charter, the affirmative vote of the holders of at least 80% of the voting
power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors (after
giving effect to the provisions of Article 5 hereof), voting together as a
single class, shall be required for the adoption, amendment or repeal of any
provisions of the By-laws of the Corporation by the stockholders.
ARTICLE 9. Approval of Certain Business Combinations.
A. Super-majority Voting Requirement;
Business Combination Defined. In addition to any affirmative vote
required by law or by the Charter, and except as otherwise expressly provided in
this Section:
1. any
merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (a) any Interested Stockholder (as hereinafter defined) or (b) any
other corporation (whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
2. any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Stockholder,
or any Affiliate of any Interested Stockholder, of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value (as hereafter defined)
equaling or exceeding 25% or more of the combined assets of the Corporation and
its Subsidiaries; or
3. the
issuance or transfer by the Corporation or any Subsidiary (in one transaction or
a series of transactions) of any securities of the Corporation or any Subsidiary
to any Interested Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value equaling or exceeding 25% of the combined
assets of the Corporation and its Subsidiaries except pursuant to an employee
benefit plan of the Corporation or any Subsidiary thereof; or
4. the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
5. any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder;
shall
require the affirmative vote of the holders of at least 80% of the voting power
of the then-outstanding shares of stock of the Corporation entitled to vote in
the election of directors (the "Voting Stock"), voting together as a single
class. Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be specified,
by law or by any other provisions of the Charter (including those applicable to
any class or series of capital stock) or in any agreement with any national
securities exchange or quotation system or otherwise.
The term
"Business Combination" as used in this Article 9 shall mean any transaction
which is referred to in any one or more of paragraphs 1 through 5 of Section A
of this Article 9.
B. Exception to Super-majority Voting
Requirement. The provisions of Section A of this Article 9
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only the affirmative vote of the majority of
the outstanding shares of capital stock entitled to vote, or such vote as is
required by law or by the Charter, if, in the case of any Business Combination
that does not involve any cash or other consideration being received by the
stockholders of the Corporation solely in their capacity as stockholders of the
Corporation, the condition specified in the following paragraph 1 is met or, in
the case of any other Business Combination, all of the conditions specified in
either of the following paragraphs 1 and 2 are met:
1. The
Business Combination shall have been approved by a majority of the Disinterested
Directors (as hereinafter defined).
2. All
of the following conditions shall have been met:
(a) The
aggregate amount of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash to be
received per share by the holders of Common Stock in such Business Combination
shall at least be equal to the higher of the following:
(i) (if
applicable) the Highest Per Share Price, including any brokerage commissions,
transfer taxes and soliciting dealers'
fees, paid by the Interested Stockholder or any of its Affiliates for any shares
of Common Stock acquired by it (x) within the two-year period immediately prior
to the first public announcement of the proposal of the Business Combination
(the "Announcement Date"), or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher.
(ii) the
Fair Market Value per share of Common Stock on the Announcement Date or on the
date on which the Interested Stockholder became an Interested Stockholder (such
latter date is referred to in this Article 9 as the "Determination Date"),
whichever is higher.
(b) The
aggregate amount of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash to be
received per share by holders of shares of any class of outstanding Voting Stock
other than Common Stock shall be at least equal to the highest of the following
(it being intended that the requirements of this subparagraph (b) shall be
required to be met with respect to every such class of outstanding Voting Stock,
whether or not the Interested Stockholder has previously acquired any shares of
a particular class of Voting Stock):
(i) (if
applicable) the Highest Per Share Price (as hereinafter defined), including any
brokerage commissions, transfer taxes and soliciting dealers'
fees, paid by the Interested Stockholder for any shares of such class of Voting
Stock acquired by it (x) within the two-year period immediately prior to the
Announcement Date, or (y) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) (if
applicable) the highest preferential amount per share to which the holders of
shares of such class of Voting Stock are entitled in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation;
and
(iii) the
Fair Market Value per share of such class of Voting Stock on the Announcement
Date or on the Determination Date, whichever is higher.
(c) The
consideration to be received by holders of a particular class of outstanding
Voting Stock (including Common Stock) shall be in cash or in the same form as
the Interested Stockholder has previously paid for shares of such class of
Voting Stock. If the Interested Stockholder has paid for shares of
any class of Voting Stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such class of
Voting Stock shall be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock previously acquired by the Interested
Stockholder. The price determined in accordance with Section B.2. of
this Article 9 shall be subject to appropriate adjustment in the event of any
stock dividend, stock split, combination of shares or similar
event.
(d) After
such Interested Stockholder has become an Interested Stockholder and prior to
the consummation of such Business Combination: (i) except as approved
by a majority of the Disinterested Directors, there shall have been no failure
to declare and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) on any outstanding stock having preference over the
Common Stock as to dividends or liquidation; (ii) there shall have been (X) no
reduction in the annual rate of dividends paid on the Common Stock (except as
necessary to reflect any subdivision of the Common Stock), except as approved by
a majority of the Disinterested Directors, and (Y) an increase in such annual
rate of dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding shares of
Common Stock, unless the failure to so increase such annual rate is approved by
a majority of the Disinterested Directors; and (iii) neither such Interested
Stockholder nor any of its Affiliates shall have become the beneficial owner of
any additional shares of Voting Stock except as part of the transaction which
results in such Interested Stockholder becoming an Interested
Stockholder.
(e) After
such Interested Stockholder has become an Interested Stockholder, such
Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A
proxy or information statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to stockholders of the Corporation at
least 30 days prior to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be mailed pursuant to
such Act or subsequent provisions).
C. Certain Definitions. For the purpose of
this Article 9:
1. A
"Person" shall include an individual, a group acting in concert, a
corporation,
a partnership, an association, a joint venture, a pool, a joint stock company, a
trust, an unincorporated organization or similar company, a syndicate or any
other group or entity formed for the purpose of acquiring, holding or disposing
of securities.
2. "Interested
Stockholder" shall mean any Person (other than the Corporation or any holding
company or Subsidiary thereof) who or which:
(a) is
the beneficial owner, directly or indirectly, of more than 14.9% of the voting
power of the outstanding Voting Stock; or
(b) is
an Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner, directly or
indirectly, of more than 14.9% of the voting power of the then-outstanding
Voting Stock; or
(c) is
an assignee of or has otherwise succeeded to any shares of Voting Stock which
were at any time within the two-year period immediately prior to the date in
question beneficially owned by any Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
3. A
Person shall be a "beneficial owner" of any Voting Stock:
(a) which
such Person or any of its Affiliates or Associates (as hereinafter defined)
beneficially owns, directly or indirectly within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as in effect on December 31, 2000;
or
(b) which
such Person or any of its Affiliates or Associates has (i) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or
understanding (but neither such Person nor any such Affiliate or Associate shall
be deemed to be the beneficial owner of any shares of Voting Stock solely by
reason of a revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such meeting, and with respect
to which shares neither such Person nor any such Affiliate or Associate is
otherwise deemed the beneficial owner); or
(c) which
are beneficially owned, directly or indirectly within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as in effect on December 31, 2000, by
any other Person with which such Person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purposes of acquiring,
holding, voting (other than solely by reason of a revocable proxy as described
in Subparagraph (b) of this Paragraph 3) or in disposing of any shares of Voting
Stock;
provided,
however, that, in the case of any employee stock ownership or similar plan of
the Corporation or of any Subsidiary in which the beneficiaries thereof possess
the right to vote any shares of Voting Stock held by such plan, no such plan nor
any trustee with respect thereto (nor any Affiliate of such trustee), solely by
reason of such capacity of such trustee, shall be deemed, for any purposes
hereof, to beneficially own any shares of Voting Stock held under any such
plan.
4. For
the purpose of determining whether a Person is an Interested Stockholder
pursuant to Paragraph 2 of this Section C, the number of shares of Voting Stock
deemed to be outstanding shall include shares deemed owned through application
of Paragraph 3 of this Section C but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
5. "Affiliate"
and "Associate" shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on December 31, 2000.
6. "Subsidiary"
means any corporation of which a majority of any class of equity security is
owned, directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Interested Stockholder set forth in
Paragraph 2 of this Section C, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
7. "Disinterested
Director" means any member of the Board of Directors who is unaffiliated with
the Interested Stockholder and was a member of the Board of Directors prior to
the time that the Interested Stockholder became an Interested Stockholder, and
any director who is thereafter chosen to fill any vacancy on the Board of
Directors or who is elected and who, in either event, is unaffiliated with the
Interested Stockholder, and in connection with his or her initial assumption of
office is recommended for appointment or election by a majority of Disinterested
Directors then on the Board of Directors.
8. "Fair
Market Value" means: (a) in the case of stock, the highest closing sale price of
the stock during the 30-day period immediately preceding the date in question of
a share of such stock on the Nasdaq System or any system then in use, or, if
such stock is admitted to trading on a principal United States securities
exchange registered under the Securities Exchange Act of 1934, Fair Market Value
shall be the highest sale price reported during the 30-day period preceding the
date in question, or, if no such quotations are available, the Fair Market Value
on the date in question of a share of such stock as determined by the Board of
Directors in good faith, in each case with respect to any class of stock,
appropriately adjusted for any dividend or distribution in shares of such stock
or in combination or reclassification of outstanding shares of such stock into a
smaller number of shares of such stock, and (b) in the case of property other
than cash or stock, the Fair Market Value of such property on the date in
question as determined by the Board of Directors in good faith.
9. Reference
to "Highest
Per Share Price" shall in each case with respect to any class of stock reflect
an appropriate adjustment for any dividend or distribution in shares of such
stock or any stock split or reclassification of outstanding shares of such stock
into a greater number of shares of such stock or any combination or
reclassification of outstanding shares of such stock into a smaller number of
shares of such stock.
10. In
the event of any Business Combination in which the Corporation survives, the
phrase "consideration other than cash to be received" as used in Sections
B.2.(a) and B.2.(b) of this Article 9 shall include the shares of Common Stock
and/or the shares of any other class of outstanding Voting Stock retained by the
holders of such shares.
D. Construction and
Interpretation. A majority of the Disinterested Directors of
the Corporation shall have the power and duty to determine for the purposes of
this Article 9, on the basis of information known to them after reasonable
inquiry, (a) whether a person is an Interested Stockholder; (b) the number of
shares of Voting Stock beneficially owned by any person; (c) whether a person is
an Affiliate or Associate of another; and (d) whether the assets which are the
subject of any Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the Corporation or any Subsidiary
in any Business Combination has, an aggregate Fair Market Value equaling or
exceeding 25% of the combined assets of the Corporation and its
Subsidiaries. A majority of the Disinterested Directors shall have
the further power to interpret all of the terms and provisions of this Article
9.
E. Fiduciary
Duty. Nothing contained in this Article 9 shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
F. Maryland Business
Combination Statute. Notwithstanding any contrary provision of
law, the provisions of Sections 3-601 through 3-604 of the MGCL, as now and
hereafter in force, shall not apply to any "business combination" (as defined in
Section 3-601(e) of the MGCL, as now and hereafter in force), of the
Corporation.
ARTICLE 10. Evaluation of
Certain Offers. The Board of Directors, when evaluating
(i) any offer of another Person (as defined in Article 9 hereof) to (A) make a
tender or exchange offer for any equity security of the Corporation, (B) merge
or consolidate the Corporation with another corporation or entity, or (C)
purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation or (ii) any other actual or proposed transaction which
would or may involve a change in control of the Corporation (whether by
purchases of shares of stock or any other securities of the Corporation in the
open market, or otherwise, tender offer, merger, consolidation, share exchange,
dissolution, liquidation, sale of all or substantially all of the assets of the
Corporation, proxy solicitation or otherwise), may, in connection with the
exercise of its business judgment in determining what is in the best interests
of the Corporation and its stockholders and in making any recommendation to the
Corporation's
stockholders, give due consideration to all relevant factors, including, but not
limited to: (A) the economic effect, both immediate and long-term, upon the
Corporation's
stockholders, including stockholders, if any, who do not participate in the
transaction; (B) the social and economic effect on the present and future
employees, creditors and customers of, and others dealing with, the Corporation
and its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located; (C) whether the proposal is acceptable
based on the historical, current or projected future operating results or
financial condition of the Corporation; (D) whether a more favorable price could
be obtained for the Corporation's stock or other securities in the future; (E)
the reputation and business practices of the other entity to be involved in the
transaction and its management and affiliates as they would affect the employees
of the Corporation and its subsidiaries; (F) the future value of the stock or
any other securities of the Corporation or the other entity to be involved in
the proposed transaction; (G) any antitrust or other legal and regulatory issues
that are raised by the proposal; (H) the business and historical, current or
expected future financial condition or operating results of the other entity to
be involved in the transaction, including, but not limited to, debt service and
other existing financial obligations, financial obligations to be incurred in
connection with the proposed transaction, and other likely financial obligations
of the other entity to be involved in the proposed transaction; and (I) the
ability of the Corporation to fulfill its objectives as a financial institution
holding company and on the ability of its subsidiary financial institution(s) to
fulfill the objectives of a federally insured financial institution under
applicable statutes and regulations. If the Board of Directors
determines that any proposed transaction of the type described in clause (i) or
(ii) of the immediately preceding sentence should be rejected, it may take any
lawful action to defeat such transaction, including, but not limited to, any or
all of the following: advising stockholders not to accept the
proposal; instituting litigation against the party making the proposal; filing
complaints with governmental and regulatory authorities; acquiring the stock or
any of the securities of the Corporation; increasing the authorized stock of the
Corporation; selling or otherwise issuing authorized but unissued stock, other
securities or granting options or rights with respect thereto; acquiring a
company to create an antitrust or other regulatory problem for the party making
the proposal; and obtaining a more favorable offer from another individual or
entity. This Article 10 does not create any inference concerning
factors that may be considered by the Board of Directors regarding any proposed
transaction of the type described in clause (i) or (ii) of the first sentence of
this Article 10.
ARTICLE
11. Acquisitions of Equity Securities from Interested
Persons.
A. Super-majority Voting
Requirement. Except as set forth in Section B of this Article
11, in addition to any affirmative vote of stockholders required by law or the
Charter, any direct or indirect purchase or other acquisition by the Corporation
of any Equity Security (as hereinafter defined) of any class from any Interested
Person (as hereinafter defined) shall require the affirmative vote of the
holders of at least 80% of the Voting Stock of the Corporation that is not
beneficially owned (for purposes of this Article 11 beneficial ownership shall
be determined in accordance with Section F.2(b) of Article 5 hereof) by such
Interested Person, voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or by any other
provisions of the Charter (including those applicable to any class of securities
or capital stock) or in any agreement with any national securities exchange or
quotation system, or otherwise. Certain defined terms used in this
Article 11 are as set forth in Section C below.
B. Exceptions. The
provisions of Section A of this Article 11 shall not be applicable with respect
to:
1. any
purchase or other acquisition of securities made as part of a tender
or
exchange
offer by the Corporation or a Subsidiary (which term, as used in this Article
11, is as defined in the first clause of Section C.6 of Article 9 hereof) of the
Corporation to purchase securities of the same class made on the same terms to
all holders of such securities and complying with the applicable requirements of
the Securities Exchange Act of 1934 and the rules and regulations thereunder (or
any subsequent provision replacing such Act, rules or regulations);
2. any
purchase or acquisition made pursuant to an open market purchase program
approved by a majority of the Board of Directors, including a majority of the
Disinterested Directors (which term, as used in this Article 11, is as defined
in Article 9 hereof); or
3. any
purchase or acquisition which is approved by a majority of the Board of
Directors, including a majority of the Disinterested Directors, and which is
made at no more than the Market Price (as hereinafter defined), on the date that
the understanding between the Corporation and the Interested Person is reached
with respect to such purchase (whether or not such purchase is made or a written
agreement relating to such purchase is executed on such date), of shares of the
class of Equity Security to be purchased.
C. Certain
Definitions. For the purposes of this Article 11:
(i) The
term Interested Person shall mean any Person (other than the Corporation,
Subsidiaries of the Corporation, pension, profit sharing, employee stock
ownership or other employee benefit plans of the Corporation and its
Subsidiaries, entities organized or established by the Corporation or any of its
Subsidiaries pursuant to the terms of such plans and trustees and fiduciaries
with respect to any such plan acting in such capacity) that is the direct or
indirect beneficial owner of 5% or more of the Voting Stock of the Corporation,
and any Affiliate or Associate of any such person. For purposes of
this Article 11, the terms "Affiliate" and "Associate" shall have the
definitions given them in Article 9 hereof.
(ii) The
Market Price of shares of a class of Equity Security on any day shall mean the
highest sale price of shares of such class of Equity Security on such day, or,
if that day is not a trading day, on the trading day immediately preceding such
day, on the national securities exchange or the Nasdaq System or any other
system then in use on which such class of Equity Security is
traded.
(iii) The
term Equity Security shall mean any security described in Section 3(a)(11) of
the Securities Exchange Act of 1934, as in effect on December 31, 2000, which is
traded on a national securities exchange or the Nasdaq System or any other
system then in use.
(iv) For
purposes of this Article 11, all references to the term Interested Stockholder
in the definition of Disinterested Director shall be deemed to refer to the term
Interested Person.
ARTICLE 12. Indemnification, etc. of Directors
and Officers.
A. Indemnification.
The Corporation shall indemnify (1) its current and former directors and
officers, whether serving the Corporation or at its request any other entity, to
the fullest extent required or permitted by the MGCL now or hereafter in force,
including the advancement of expenses under the procedures and to the fullest
extent permitted by law, and (2) other employees and agents to such extent as
shall be authorized by the Board of Directors and permitted by law; provided,
however, that, except as provided in Section B hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
B. Procedure.
If a claim under Section A of this Article 12 is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall also be
entitled to be reimbursed the expense of prosecuting or defending such
suit. It shall be a defense to any action for advancement of expenses
that the Corporation has not received both (i) an undertaking as required by law
to repay such advances in the event it shall ultimately be determined that the
standard of conduct has not been met and (ii) a written affirmation by the
indemnitee of his good faith belief that the standard of conduct necessary for
indemnification by the Corporation has been met. In (i) any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met the applicable standard for
indemnification set forth in the MGCL. Neither the failure of
the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the MGCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to indemnification or to
an advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article 12 or otherwise shall be on the
Corporation.
C. Non-Exclusivity. The
rights to indemnification and to the advancement of expenses conferred in this
Article 12 shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, the Charter, the Corporation's
By-laws, any agreement, any vote of stockholders or the Board of Directors, or
otherwise.
D. Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the
MGCL.
E. Miscellaneous. The
Corporation shall not be liable for any payment under this Article 12 in
connection with a claim made by any indemnitee to the extent such indemnitee has
otherwise actually received payment under any insurance policy, agreement, or
otherwise, of the amounts otherwise indemnifiable hereunder. The
rights to indemnification and to the advancement of expenses conferred in
Sections A and B of this Article 12 shall be contract rights and such rights
shall continue as to an indemnitee who has ceased to be a director or officer
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
Any
repeal or modification of this Article 12 shall not in any way diminish any
rights to indemnification or advancement of expenses of such director or officer
or the obligations of the Corporation arising hereunder with respect to events
occurring, or claims made, while this Article 12 is in force.
ARTICLE 13. Limitation of
Liability. An officer or director of the Corporation, as such,
shall not be liable to the Corporation or its stockholders for money damages,
except (i) to the extent that it is proved that the person actually received an
improper benefit or profit in money, property or services for the amount of the
benefit or profit in money, property or services actually received; (ii) to the
extent that a judgment or other final adjudication adverse to the person is
entered in a proceeding based on a finding in the proceeding that the
person's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding; or (iii)
to the extent otherwise provided by the MGCL. If the MGCL is amended
to further eliminate or limit the personal liability of officers and directors,
then the liability of officers and directors of the Corporation shall be
eliminated or limited to the fullest extent permitted by MGCL, as so
amended.
Any
repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such repeal or
modification.
ARTICLE 14. Amendment of the
Charter. The Corporation reserves the right to amend or repeal
any provision contained in the Charter in the manner prescribed by the MGCL,
including any amendment altering the terms or contract rights, as expressly set
forth in the Charter, of any of the Corporation's
outstanding stock by classification, reclassification or otherwise, and all
rights conferred upon stockholders are granted subject to this reservation;
provided,
however, that, notwithstanding any other provision of the Charter or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the stock of the
Corporation required by law or by the Charter, the affirmative vote of the
holders of at least 80% of the voting power of all of the then-outstanding
shares of the capital stock of the Corporation entitled to vote generally in the
election of directors (after giving effect to the provisions of Article 5),
voting together as a single class, shall be required to amend or repeal this
Article 14, Section F of Article 5, Article 7, Article 8, Article 9, Article 11,
Article 12 or Article 13; provided, further,
that as provided in Article 5, the Board of Directors, with the approval of a
majority of the entire Board of Directors and without action by the
stockholders, may amend the Charter to increase or decrease the aggregate number
of shares of stock or the number of shares of stock of any class or series that
the Corporation has authority to issue.
SECOND: The foregoing
amendment and restatement of the Charter does not increase the authorized
capital stock of the Corporation.
THIRD:
The foregoing amendment and restatement of the Charter has
been duly advised by the Board of Directors and approved by the stockholders of
the Corporation as required by law.
FOURTH: The current
address of the principal office of the Corporation in the State of Maryland is
set forth in Article 2 of the foregoing amendment and restatement of the
Charter.
FIFTH:
The name and address of the Corporation's current resident agent is
as set forth in Article 4 of the foregoing amendment and restatement of the
Charter.
SIXTH:
The number of directors of the Corporation and the names of those
currently in office are as set forth in Article 6 of the foregoing amendment and
restatement of the Charter.
SEVENTH: The undersigned
President and Chief Executive Officer acknowledges these Articles of Amendment
and Restatement to be the corporate act of the Corporation and as to all matters
or facts required to be verified under oath, the undersigned President and Chief
Executive Officer acknowledges that to the best of his knowledge, information
and belief these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the
Corporation has caused these Articles of Amendment and Restatement to be signed
in its name and on its behalf by its President and Chief Executive Officer and
attested to by its Secretary on this 6th day of November, 2001.
MB-MIDCITY,
INC.
By: /s/ Mitchell
Feiger
Mitchell
Feiger
President
and Chief Executive Officer
ATTESTED:
By: /s/ Doria
Koros
Doria
Koros
Secretary