SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1
TO
FORM 8-A
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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FIRST OAK BROOK BANCSHARES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 36-3220778
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
1400 SIXTEENTH STREET 60523
OAK BROOK, ILLINOIS (Zip Code)
(Address of Principal Executive Offices)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box. [X]
Securities to be Registered Pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered: Each Class is to be Registered:
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None None
Securities to be Registered Pursuant to Section 12(g) of the Act:
Common Stock, par value $2.00 per share
(Formerly "Class A Common Stock")
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following description updates the description of the Class A Common
Stock of First Oak Brook Bancshares, Inc. (the "Company") previously registered
under Section 12(g) of the Securities Exchange Act of 1934 on Form 8-A, which
has been renamed the "Common Stock."
COMMON STOCK
Authorized. The Company is authorized to issue 16,000,000 shares of
Common Stock, par value $2.00 per share (the "Common Stock") and 100,000 shares
of Preferred Stock, without par value (the "Preferred Stock").
Dividends. The holders of Common Stock are entitled to receive and
share equally in such dividends, if any, declared by the Board of Directors out
of funds legally available therefor. The Company may pay dividends if, as and
when declared by its Board of Directors. The payment of dividends by the Company
is subject to limitations imposed by the Delaware General Corporation Law
("DGCL"). If the Company issues Preferred Stock, the holders thereof may have a
priority over the holders of the Common Stock with respect to dividends.
Voting Rights. The holders of Common Stock possess voting rights in the
Company. Stockholders elect the Company's Board of Directors and act on such
other matters as are required to be presented to them under the DGCL or the
Company's Restated Certificate of Incorporation or as are otherwise presented to
them by the Board of Directors. Each holder of Common Stock will be entitled to
one vote per share and will not have any right to cumulate votes in the election
of directors. Accordingly, holders of more than fifty percent of the outstanding
shares of Common Stock will be able to elect all of the Directors to be elected
each year. If the Company issues Preferred Stock, holders of the Preferred Stock
may also possess voting rights. As described more fully below, certain matters
to amend the Company's Restated Certificate of Incorporation or Amended and
Restated By-laws requires a 75% stockholder vote.
Liquidation. In the event of any liquidation, dissolution or winding up
of the Company, the holders of its Common Stock would be entitled to receive,
after payment or provision for payment of all debts and liabilities of the
Company, all assets of the Company available for distribution. If Preferred
Stock is issued, the holders thereof may have a priority over the holders of the
Common Stock in the event of any liquidation or dissolution.
Preemptive Rights and Redemption. Holders of the Common Stock will not
be entitled to preemptive rights with respect to any shares which may be issued
by the Company in the future. The Common Stock is not subject to mandatory
redemption by the Company.
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PREFERRED STOCK
The Board of Directors is authorized, pursuant to the Restated
Certificate of Incorporation, to issue 100,000 shares of Preferred Stock in one
or more series with respect to which the Board, without stockholder approval,
may determine voting, conversion and other rights which could adversely affect
the rights of the holders of Common Stock. Currently, no shares of the Company's
authorized Preferred Stock are issued or outstanding although the Company has
adopted a Shareholder Rights Plan pursuant to which preferred share purchase
rights will be issued on May 21, 1999 to holders of Common Stock. Such rights
will, in certain circumstances, entitle the holder thereof to purchase
fractional shares of Series A Preferred Stock. Stockholders will not have
preemptive rights to subscribe for shares of Preferred Stock.
The rights of the holders of the Common Stock would generally be
subject to the prior rights of the Preferred Stock with respect to dividends,
liquidation preferences and other matters. The dividend rights, dividend rates,
conversion rights, conversion prices, voting rights, redemption rights and terms
(including sinking fund provisions, if any), the redemption price or prices and
the liquidation preferences of any series of the authorized Preferred Stock and
the numbers of such shares of Preferred Stock in each series will be established
by the Board of Directors as such shares are to be issued. It is not possible to
state the actual effect of the Preferred Stock on the rights of holders of
Common Stock until the Board of Directors determines the rights of the holders
of a series of the Preferred Stock. However, such effects might include
(i) restrictions on dividends; (ii) dilution of the voting power to the extent
that the Preferred Stock were given voting rights; (iii) dilution of the equity
interest and voting power if the Preferred Stock were convertible into Common
Stock; and (iv) restrictions upon any distribution of assets to the holders of
Common Stock upon liquidation or dissolution until the satisfaction of any
liquidation preference granted to holders of the Preferred Stock.
Furthermore, the Board of Directors could direct the Company to issue,
in one or more transactions, shares of Preferred Stock or additional shares of
Common Stock or rights to purchase such shares (subject to the limits imposed by
applicable laws and the rules of any stock exchange or automated dealer
quotation system to the extent that such rules may become applicable or may be
observed by the Company) in amounts which could make more difficult and,
therefore, less likely, a takeover, proxy contest, change in management of the
Company or any other extraordinary corporate transaction which might be opposed
by the incumbent Board of Directors. Any issuance of Preferred Stock or of
Common Stock could have the effect of diluting the earnings per share, book
value per share and voting power of Common Stock held by the Company's
stockholders.
CERTAIN ANTI-TAKEOVER EFFECTS OF THE RESTATED CERTIFICATE OF INCORPORATION,
AMENDED AND RESTATED BY-LAWS AND DELAWARE LAW
General. Certain provisions of the Company's Restated Certificate of
Incorporation, Amended and Restated By-laws and the DGCL may have the effect of
impeding the acquisition of control of the Company by means of a tender offer, a
proxy fight, open-market purchases or otherwise in a transaction not approved by
the Board of Directors. These provisions may have the effect of discouraging a
future takeover attempt which is not approved by the Board of Directors but
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which individual stockholders may deem to be in their best interests or in which
stockholders may receive a substantial premium for their shares over then
current market prices. As a result, stockholders who might desire to participate
in such a transaction may not have an opportunity to do so. Such provisions will
also render the removal of the current Board of Directors or management of the
Company more difficult.
The provisions of the Restated Certificate of Incorporation and Amended
and Restated Bylaws described below are designed to reduce, or have the effect
of reducing, the vulnerability of the Company to an unsolicited proposal for the
restructuring or sale of all or substantially all of the assets of the Company
or an unsolicited takeover attempt which is unfair to stockholders. The
following description of certain of the provisions of the Restated Certificate
of Incorporation and Amended and Restated By-laws of the Company is general and
is qualified in its entirety by reference to the Restated Certificate of
Incorporation and Amended and Restated By-laws of the Company, copies of which
have been filed as exhibits.
Authorized Shares. The Restated Certificate of Incorporation authorizes
the issuance of 16,000,000 shares of Common Stock and 100,000 shares of
Preferred Stock. The shares of Common Stock and Preferred Stock have been
authorized in an amount which provides the Board of Directors with flexibility
to effect, among other things, transactions, financings, acquisitions, stock
dividends, stock splits and employee stock options. However, these authorized
shares may also be used by the Board of Directors consistent with its fiduciary
duty to deter future attempts to gain control of the Company. The Board of
Directors also has sole authority to determine the terms of any one or more
series of Preferred Stock, including voting rights, conversion rates, and
liquidation preferences. As a result of the ability to fix voting rights for a
series of Preferred Stock, the Board of Directors has the power to the extent
consistent with its fiduciary duty to issue a series of Preferred Stock to
persons friendly to management in order to attempt to block a merger or other
transaction by which a third party seeks control, and thereby assist the
incumbent Board of Directors and management to retain their respective
positions.
Staggered Board of Directors; Filling of Board Vacancies and
Qualifying Shares. The Board of Directors is divided into three classes, each of
which contains approximately one-third of the whole number of the members of the
Board of Directors. Each class serves a staggered three-year term, with
approximately one-third of the total number of Directors being elected each
year. Under the DGCL, members of a staggered board may only be removed for cause
unless the Restated Certificate of Incorporation provides otherwise. The
Restated Certificate of Incorporation does not provide for removal of directors
without cause. The staggered board is intended to provide for continuity of the
Board of Directors and to make it more difficult and time-consuming for a
stockholder group to fully use its voting power to gain control of the Board of
Directors without the consent of the incumbent Board of Directors.
The Amended and Restated By-laws provide that the number of the
Directors shall be eight. The Amended and Restated By-laws also provide that any
vacancy occurring on the Board of Directors, including a vacancy created by an
increase in the number of Directors, will be filled by a majority vote of the
Directors then in office. Directors so chosen shall hold office until their
successors are elected and qualified or until their earlier resignation or
removal.
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Cumulative Voting; Action by Written Consent and Stockholder Meetings.
The Restated Certificate of Incorporation does not provide for cumulative voting
for any purpose. The Restated Certificate of Incorporation and Amended and
Restated By-laws also provide that any action required or permitted to be taken
by the stockholders must be effected at an annual or special meeting and may not
be effected by written consent in lieu of a meeting. The Amended and Restated
By-laws provide that special meetings of the stockholders may only be called by
the Chairman of the Board, the President or the Secretary at the written request
of a majority of the Board of Directors.
Delaware Business Combination Statute. Section 203 of the DGCL provides
that, subject to certain exceptions specified therein, an "interested
stockholder" of a Delaware corporation shall not engage in any business
combination, including mergers or consolidations or acquisitions of additional
shares of the corporation, with the corporation for a three-year period
following the time that such stockholder becomes an interested stockholder
unless (i) prior to such time, the board of directors of the corporation
approved either the business combination or the transaction which resulted in
the stockholder becoming an interested stockholder, (ii) upon consummation of
the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction commenced (excluding
certain shares), or (iii) at or subsequent to such time the business combination
is approved by the board of directors of the corporation and authorized at an
annual or special meeting of stockholders, by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the interested
stockholder. Except as otherwise specified in Section 203, an interested
stockholder is defined to include any person that is (x) the owner of 15% or
more of the outstanding voting stock of the corporation, or (y) is an affiliate
or associate of the corporation and was the owner of 15% or more of the
outstanding voting stock of the corporation at any time within the three-year
period immediately prior to the date of determination, and the affiliates and
associates of any such person.
Under certain circumstances, Section 203 makes it more difficult for a
person who would be an interested stockholder to effect various business
combinations with a corporation for a three-year period. The Company has not
elected to be exempt from the restrictions imposed under Section 203. The
provisions of Section 203 may encourage persons interested in acquiring the
Company to negotiate in advance with the Board of Directors of the Company since
the stockholder approval requirement would be avoided if a majority of the
directors then in office approves either the business combination or the
transaction which results in any such person becoming an interested stockholder.
Such provisions also may have the effect of preventing changes in the management
of the Company. It is possible that such provisions could make it more difficult
to accomplish transactions which the Company's stockholders may otherwise deem
to be in their best interests.
Amendment of the Certificate of Incorporation and By-laws. The Restated
Certificate of Incorporation provides that the affirmative vote of the holders
of at least 75% of the outstanding voting stock, voting together as a single
class, is required to amend, repeal, or adopt any provision inconsistent with,
the provisions of the Restated Certificate of Incorporation classifying
directors, prohibiting stockholder action without a meeting or specifying the
vote required to amend such provisions. The By-laws may be amended by the
stockholders or the Board of Directors; however,
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the affirmative vote of the holders of at least 75% of the outstanding voting
stock, voting together as a single class, is required to amend the Bylaws.
Certain By-Law Provisions. The Amended and Restated By-laws of the
Company also require a stockholder who intends to nominate a candidate for
election to the Board of Directors, or to raise new business at an annual
stockholder meeting, to provide advance notice of at least 120 days to the
Company. The notice provision requires a stockholder who desires to raise new
business at an annual stockholder meeting to provide certain information to the
Company concerning the nature of the new business, the stockholder and such
stockholder's interest in the business matter. Similarly, a stockholder wishing
to nominate any person for election as a director must provide the Company with
certain information concerning the nominee and such proposing stockholder.
The provisions described above are intended to reduce the Company's
vulnerability to takeover attempts and certain other transactions which have not
been negotiated with and approved by members of its Board of Directors.
LIMITATION OF DIRECTOR LIABILITY AND INDEMNIFICATION
The Restated Certificate of Incorporation provides that no Director of
the Company will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a Director; provided, however,
that Directors will have liability (i) for any breach of a Director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which
the Director derived an improper personal benefit.
The Restated Certificate of Incorporation also provides that the
Company will indemnify any person it has the power to indemnify to the fullest
extent permitted by the DGCL. As a result, the Company will indemnify any person
made or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a Director,
officer, employee or agent of the Company, or is or was serving at the Company's
request as a Director, trustee, officer, employee or agent of another
corporation or other enterprise against expenses actually and reasonably
incurred by such person in connection with such action, suit or proceeding. To
the extent that a person seeking indemnification has been successful on the
merits or otherwise in defense of any action, suit, or proceeding, such person
will be indemnified for his or her expenses which were actually and reasonably
incurred. Any indemnification payment must be authorized upon a determination
that the individual seeking indemnification met the necessary standard of
conduct for such indemnification. Such a determination will be made by a
majority vote of a quorum consisting of directors not involved with the action,
suit or proceeding, a written opinion of independent legal counsel if the
described quorum cannot be obtained or if the majority vote of the described
quorum directs, a vote of the stockholders, or a decision of the court in which
the action was brought. To qualify for indemnification, such person must have
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the Company's best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was
lawful.
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Expenses may be paid by the Company as they are incurred, in advance of a final
disposition, as authorized by the Board of Directors and upon receipt of an
undertaking by the person seeking indemnification to repay the advanced amount
if it is later determined that he or she was not entitled to indemnification.
The indemnification and advancement of expenses provided by the Amended and
Restated By-laws are not to be deemed exclusive of any other rights to which any
person seeking indemnification may be entitled as a matter of law or under the
Restated Certificate of Incorporation, the Amended and Restated By-laws, any
agreement, vote of stockholders, any insurance purchased by the Company, or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and will continue as to a person who
has ceased to be such Director, trustee, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such person.
ITEM 2. EXHIBITS.
3.1 Restated Certificate of Incorporation of First Oak Brook
Bancshares, Inc.
3.2 Amended and Restated By-laws of First Oak Brook Bancshares, Inc.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
FIRST OAK BROOK BANCSHARES, INC.
By: /s/ Rosemarie Bouman
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Rosemarie Bouman
Vice President and Chief Financial Officer
Dated: May 6, 1999
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INDEX TO EXHIBITS
Exhibit
3.1 Restated Certificate of Incorporation of First Oak Brook
Bancshares, Inc.
3.2 Amended and Restated By-laws of First Oak Brook Bancshares, Inc.
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RESTATED CERTIFICATE OF INCORPORATION
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OF
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FIRST OAK BROOK BANCSHARES, INC.
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First Oak Brook Bancshares, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The present name of the corporation is First Oak Brook Bancshares, Inc.
First Oak Brook Bancshares, Inc. was originally incorporated under the same
name, and the original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on March 3, 1983.
2. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors and the stockholders of First Oak Brook Bancshares, Inc. (the
"Corporation") in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
3. This Restated Certificate of Incorporation restates and integrates and
further amends the provisions of the Certificate of Incorporation of this
corporation.
4. The text of the Certificate of Incorporation as heretofore amended or
supplemented is hereby restated and further amended to read in its entirety as
follows:
ARTICLE I
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The name of the corporation (hereinafter called the "Corporation") is First
Oak Brook Bancshares, Inc.
ARTICLE II
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The address, including street, number, city, and county, of the registered
office of the Corporation in the State of Delaware is 1013 Centre Road,
Wilmington, Delaware 19805, county of New Castle; and the name of the registered
agent of the Corporation in the State of Delaware at such address is Corporation
Service Company.
ARTICLE III
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The nature of business to be conducted or promoted and the purpose of the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware
("Delaware General Corporation Law").
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ARTICLE IV
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1. Authorized Capital Stock. The total number of shares of all classes of
stock which the Corporation is authorized to issue is Sixteen Million One
Hundred Thousand 16,100,000 shares, consisting of two (2) classes. The classes
and aggregate number of shares of each class which this Corporation shall have
authority to issue are as follows:
(a) 16,000,000 shares of Class A Common Stock, $2.00 par value per
share; and
(b) 100,000 shares of Preferred Stock, without par value.
At the close of business on the date this Restated Certificate of Incorporation
becomes effective, and without any further action on the part of the Corporation
or its stockholders, each share of Common Stock, par value $2.00 per share, then
issued and outstanding, and each share then held as treasury stock of the
Corporation, shall be changed and reclassified into one fully paid and
nonassessable share of Class A Common Stock, par value $2.00 per share,
whereupon the title of the Class A Common Stock shall be changed to Common
Stock, $2.00 par value per share. To reflect the said change and
reclassification and change in title, each certificate representing theretofore
issued and outstanding shares or treasury shares of Common Stock and each
certificate representing theretofore issued and outstanding shares or treasury
shares of Class A Common Stock shall represent after such change and
reclassification the same number of shares of such Common Stock; and the holder
of record of each such certificate shall be entitled to receive a new
certificate representing a number of shares of such Common Stock, par value
$2.00 per share, equal to the number of shares represented by said certificate
for theretofore issued and outstanding shares, so at the close of business on
the date this Restated Certificate of Incorporation becomes effective,
certificates for the shares of such Common Stock herein authorized shall be
issued in exchange for, and upon surrender of, the certificates for shares of
the Common Stock and Class A Common Stock as set forth above, and each holder of
record of the Common Stock and Class A Common Stock shares at such time shall be
and become a holder of the herein authorized shares of Common Stock upon the
basis hereinabove specified, whether or not certificates representing said
shares are then issued and delivered.
2. Terms Applicable to the Common Stock.
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(a) Voting. Each outstanding share of Common Stock of the Corporation
shall entitle the holder thereof to one vote on each matter
submitted to a vote at a meeting of the stockholders.
(b) Dividends. Subject to any rights to receive dividends to which
the holders of the shares of the Preferred Stock may be entitled,
the holders of shares of Common Stock shall be entitled to
receive dividends, if and when declared payable from time to time
by the Board of Directors from any funds legally available
therefor.
(c) Dissolution. In the event of any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary,
after there shall have been
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paid to the holders of shares of Preferred Stock the full amounts
to which they shall be entitled, the holders of the then
outstanding shares of Common Stock shall be entitled to receive,
pro rata, all of the remaining assets of the Corporation
available for distribution to its stockholders. The Board of
Directors may distribute in kind to the holders of the shares of
Common Stock such remaining assets of the Corporation or may
sell, transfer or otherwise dispose of all or any part of such
remaining assets to any other corporation, trust or other entity
and receive payment therefor in cash, stock or obligations of
such other corporation, trust or entity, or any combination
thereof, and may sell all or any part of the consideration so
received and distribute any balance thereof in kind to holders of
the shares of Common Stock. The merger or consolidation of the
Corporation into or with any other corporation, or the merger of
any other corporation into it, or any purchase or redemption of
shares of stock of the Corporation of any class, shall not be
deemed to be a dissolution, liquidation or winding up of the
Corporation for the purpose of this subparagraph 2(c).
3. Terms Applicable to the Preferred Stock. The shares of Preferred Stock
may be issued from time to time in one or more series, each of which shall have
a distinctive serial designation. The Board of Directors is hereby authorized to
specify from time to time the number of shares of any series, and fix or alter
by resolution or resolutions the voting powers, designations, preferences, and
relative, participating optional or other special rights, and qualifications,
limitations or restrictions, of such Preferred Stock, including but not limited
to:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law and, if so, the terms and
conditions of such voting rights;
(d) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable,
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;
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(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series; and, if so, the terms and
amount of such sinking fund;
(g) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
(h) Any other relative rights, preferences and limitations of that
series.
4. No Preemptive Rights. No holder of shares of stock of the Corporation
shall, by reason of such holding, have any preemptive right to purchase,
subscribe for or otherwise acquire shares of any class of stock of the
Corporation of any security convertible into, or any warrant, option or right to
purchase, or to subscribe for or otherwise acquire shares of stock of the
Corporation, whether now or hereafter authorized, and whether issued for cash or
other consideration, or by way of dividend.
ARTICLE V
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1. Board of Directors: Number, Election and Term of Directors. The number
of directors of the Corporation shall be fixed from time to time by or pursuant
to the By-laws. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. The directors shall
be classified with respect to the time for which they severally hold office,
into three classes, as nearly equal in number as possible, as shall be provided
in the manner specified in the By-laws, one class to hold office initially for a
term expiring at the 2000 Annual Meeting of Stockholders, another class to hold
office initially for a term expiring at the 2001 Annual Meeting of Stockholders,
and another class to hold office initially for a term expiring at the 2002
Annual Meeting of Stockholders, with the members of each class to hold office
until their successors have been duly elected and qualified. At each Annual
Meeting of Stockholders, commencing with the 2000 Annual Meeting of
Stockholders, the successors to the class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the Annual
Meeting of Stockholders held in the third year following the year of their
election and until their successors have been duly elected and qualified.
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2. Stockholder Nomination of Directors Candidates. Advance notice of
nomination for the election of directors, other than by the Board of Directors
or a duly authorized committee thereof or any authorized officer of the
Corporation to whom the Board of Directors or such committee shall have
delegated such authority, and information concerning nominees, shall be given in
the manner provided in the By-laws.
3. Newly Created Directorships and Vacancies. Newly created directorships
resulting from any increase in the authorized number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
by a majority vote of the directors then in office, and directors so chosen
shall hold office for a term expiring at the next Annual Meeting of Stockholders
at which the term of the class of which they have been elected expires.
4. Removal. Any director or directors may be removed from office at any
time, but only for cause and only by the affirmative vote of (a) the holders of
at least 75% of the voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, or (b) a majority of the Board of Directors.
5. Special Meetings of Stockholders. Special meetings of stockholders of
the Corporation may be called only in the manner provided in the By-laws.
6. Action of Stockholders. Any action required or permitted to be taken by
the holders of Common Stock of the Corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by any consent
in writing by such holders.
7. Bylaws: Amendment or Repeal. In furtherance and not in limitation of
the powers conferred by statute, the Board of Directors is expressly authorized
to make, alter or repeal the Bylaws of the Corporation. Notwithstanding any
other provisions of this Restated Certificate of Incorporation or the By-laws of
the Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Restated Certificate of Incorporation or the By-laws of
the Corporation), the affirmative vote of the holders of seventy-five percent
(75%) or more of the voting power of the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required for the
stockholders to alter or repeal the By-laws of the Corporation.
8. Certificate of Incorporation: Amendment, Repeal, Etc. Notwithstanding
any other provisions of this Restated Certificate of Incorporation or the
By-laws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Restated Certificate of Incorporation
or the By-laws of the Corporation), the affirmative vote of the holders of
seventy-five percent (75%) or more of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend or repeal, or adopt any provision inconsistent with, Parts 1 through 8 of
this Article V.
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ARTICLE VI
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1. Liability of Directors. No director shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided, however, that this paragraph shall not eliminate or limit
the liability of a director (a) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (c)
under Section 174 of the Delaware General Corporation Law, or (d) for any
transaction from which the director derived an improper personal benefit. This
paragraph shall not eliminate or limit the liability of a director for any act
or omission occurring prior to the date when this paragraph becomes effective.
2. Indemnification. The Corporation shall, to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities or other matters referred to in or covered by said
section.
3. Advancement of Expenses. Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as mandated in this
paragraph. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
4. Non-Exclusivity. The indemnification and advancement of expenses
provided for herein shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be entitled under
any By-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
ARTICLE VII
-----------
A director of the Corporation shall not in the absence of fraud be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor in the absence of fraud shall a
director of the Corporation be liable to account to the Corporation for any
profit realized by him from or through any transaction or contract of the
Corporation by reason of the fact that he, or any firm of which he is a member,
or any corporation of which he is an officer, director or stockholder, was
interested in such transaction or contract if such transaction or contract has
been authorized, approved or ratified in the manner provided in the General
Corporation Law of Delaware for contracts between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest.
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ARTICLE VIII
------------
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any or all of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this Corporation under the provision of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditor or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors, or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders of this Corporation, as the case
may be, and also on this Corporation.
ARTICLE IX
----------
From time to time any of the provisions of this Restated Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Restated Certificate of Incorporation are granted subject to the provisions of
this Article IX.
IN WITNESS WHEREOF, First Oak Brook Bancshares, Inc., has caused this
Restated Certificate of Incorporation to be signed by its President and attested
by its Secretary on this 4th day of May, 1999.
FIRST OAK BROOK BANCSHARES, INC.
By:/s/ Richard M. Rieser, Jr.
-------------------------------
Its: President
ATTEST:
By: /s/William E. Navolio
-----------------------------------
Its: Secretary
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AMENDED AND RESTATED
--------------------
BY-LAWS
-------
OF
--
FIRST OAK BROOK BANCSHARES, INC.
-------------------------------
(A DELAWARE CORPORATION)
ARTICLE I
---------
OFFICES AND SEAL
----------------
1.01 OFFICES. The principal office of the Corporation in the State of
Delaware shall be located in the City of Dover and County of Kent. The
Corporation may have such other offices, either within or without the State of
Delaware, as the Board of Directors may designate or the business of the
Corporation may require.
1.02 SEAL. The Board of Directors shall provide a corporate seal, which
shall be in the form of a circle and shall have inscribed thereon the name of
the Corporation and the words "Corporate Seal, Delaware."
ARTICLE II
----------
STOCKHOLDERS
------------
2.01 CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of Directors,
if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation certifying the number of shares owned by him in the Corporation. Any
and all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. All certificates for shares
of capital stock shall be consecutively numbered or otherwise identified.
<PAGE>
Whenever the Corporation shall be authorized to issue more than one class
of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The Corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the Board of Directors may require the owner of any lost, stolen,
or destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of any such new certificate.
2.02 FRACTIONAL SHARE INTERESTS. The Corporation may, but shall not be
required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interests by those entitled thereto, (2) pay in cash the fair value of fractions
of a share as of the time when those entitled to receive such fractions are
determined, or (3) issue scrip or warrants in registered or bearer form which
shall entitle the holder to receive a certificate for a full share upon the
surrender of such scrip or warrants aggregating a full share. A certificate for
a fractional share shall, but scrip or warrants shall not unless otherwise
provided therein, entitle the holder to exercise voting rights, to receive
dividends thereon, and to participate in any of the assets of the Corporation in
the event of liquidation. The Board of Directors may cause scrip or warrants to
be issued subject to the conditions that they shall become void if not exchanged
for certificates representing full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are exchangeable may
be sold by the Corporation and the proceeds thereof distributed to the holders
of scrip or warrants, or subject to any other conditions which the Board of
Directors may impose.
2.03 STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the Corporation shall be made
only on the stock ledger of the Corporation by the registered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
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<PAGE>
2.04 TRANSFER AGENTS AND REGISTRARS. The Board of Directors may appoint one
or more transfer agents or assistant transfer agents and one or more registrars
of transfers and may require all certificates representing shares of capital
stock of the Corporation to bear the signature of a transfer agent or an
assistant transfer agent and a registrar of transfer. The Board of Directors may
at any time terminate the appointment of any transfer agent, assistant transfer
agent, or registrar of transfers. A transfer agent may serve as a registrar, and
vice versa.
2.05 RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or the allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion, or exchange of stock or for the purpose of
any other lawful action, the directors may fix, in advance, a record date, which
shall not be more than sixty days nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. If no record date
is fixed: (1) the record date for determining stockholders entitled to notice of
or to vote at a meeting as stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; and (2) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at any meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
2.06 MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat, as the case may be, the term "share" or "shares" or "share of
stock" or "shares of stock" or "stockholder" or "stockholders" refers to an
outstanding share or shares of stock and to a holder or holders of record of
outstanding shares of stock when the Corporation is authorized to issue only one
class of shares of stock, and said reference is also intended to include any
outstanding share or shares of stock and any holder or holders of record of
outstanding shares of stock of any class upon which or upon whom the certificate
of incorporation confers such rights where there are two or more classes or
series of shares of stock or upon which or upon whom the General Corporation Law
confers such rights notwithstanding that the certificate of incorporation may
provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that no
such right shall vest in the event of an increase or a decrease in the
authorized number of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate of incorporation,
except as any provision of law may otherwise require.
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<PAGE>
2.07 STOCKHOLDER MEETINGS.
---------------------
(a) TIME. The annual meeting of stockholders shall be held on the
date and at the time fixed, from time to time, by the directors, provided that
the first annual meeting shall be held on a date within thirteen months after
the organization of the Corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting of stockholders shall be held on the date and at the
time fixed by the directors.
(b) PLACE. Annual meetings and special meetings of stockholders shall
be held at such place, within or without the State of Delaware, as the directors
may, from time to time, fix. Whenever the directors shall fail to fix such
place, the meeting shall be held at the principal office of the Corporation in
the State of Illinois.
(c) CALL. Annual meetings and special meetings of stockholders may be
called by the Board of Directors or by any officer instructed by the Board of
Directors to call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings of
stockholders shall be given, stating the place, date, and hour of the meeting
and, if required by paragraph 2.07(b) of these By-Laws, specifying the place
provided in said paragraph. The notice of an annual meeting shall state that the
meeting is called for the election of directors and for the transaction of other
business which may properly come before the meeting, and shall, if any other
action which could be taken at a special meeting is to be taken at such annual
meeting, state the purpose or purposes. The notice of a special meeting shall in
all instances state the purpose or purposes for which the meeting is called. The
notice of any meeting shall also include, or be accompanied by, any additional
statements, information, or documents prescribed by the General Corporation Law.
Except as otherwise provided by the General Corporation Law, a copy of the
notice of any meeting shall be given, personally or by mail, not less than ten
days nor more than sixty days before the date of the meeting, unless the lapse
of the prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the Corporation. Notice by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or to another place, and if an announcement of the
adjourned time and/or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the directors, after adjournment,
fix a new record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
4
<PAGE>
(e) STOCKHOLDER LIST. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city or other municipality or community
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the Corporation, or to vote at any meeting of
stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Deputy Chairman of
the Board, if any, the Vice-Chairman of the Board, if any, the President, a
Vice-President, or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation, or in his absence, an Assistant Secretary, shall act as secretary
of every meeting, but if neither the Secretary nor an Assistant Secretary is
present the Chairman of the meeting shall appoint a secretary of the meeting.
(g) PROXY REPRESENTATION. Each stockholder may authorize another
person or persons to act for him or her by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any meeting
or voting or participating at a meeting. Every proxy must be executed in writing
or in such other manner as permitted under the General Corporation Law and must
be signed by the stockholder or by the stockholder's attorney-in-fact, or
transmitted with information from which it can be determined that the proxy was
authorized by the stockholder. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS. The Board of Directors, in advance of any meeting,
may, but need not, appoint one or more inspectors of election to act at the
meeting or any adjournment thereof. If an inspector or inspectors are not
appointed, the person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails
to appear or act, the vacancy may be filled by appointment made by the directors
in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, if any, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and
5
<PAGE>
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the results,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting, the
inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
(i) QUORUM. The holders of a majority of the outstanding shares of
stock shall constitute a quorum at a meeting of stockholders for the transaction
of any business. The stockholders present may adjourn the meeting despite the
absence of a quorum. If a quorum is present at the commencement of or during a
meeting, withdrawal of stockholders from such meeting thereafter shall not cause
failure of a duly constituted quorum at the meeting.
(j) VOTING. Each share of stock shall entitle the holder thereof to
one vote. In the election of directors, a plurality of the votes cast shall
elect. Any other action shall be authorized by a majority of the votes cast
except where the General Corporation Law prescribes a different percentage of
votes and/or a different exercise of voting power, and except as may be
otherwise prescribed by the provisions of the certificate of incorporation and
these By-Laws. In the election of directors, and for any other action, voting
need not be by ballot, written or otherwise. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held. Persons whose
stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the Corporation he or she has expressly empowered the
pledgee to vote thereon, in which case only the pledgee or his or her proxy may
represent the stock and vote thereon. Stock standing in the name of another
corporation, domestic or foreign, may be voted by such officer, agent, or proxy
as the charter or by-laws of such corporation may determine. Shares of its own
capital stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the Corporation, shall be neither entitled to vote
nor counted for quorum purposes, but shares of its capital stock held by the
Corporation or any such other corporation in a fiduciary capacity may be voted
by it and counted for quorum purposes.
2.08 ACTION OF STOCKHOLDERS. Any action required or permitted to be taken
at a meeting of stockholders must be effected at a duly called annual or special
meeting of the stockholders and the power to consent in writing, without a
meeting, to the taking of any action is specifically denied.
2.09 NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before the annual meeting of
stockholders, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting of
stockholders, the stockholder must have the legal right and authority to make
the proposal for consideration at the meeting and the
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<PAGE>
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's written notice of intent to make
a proposal or proposals must be personally delivered to or mailed by United
States mail, postage prepaid and received by the Secretary of the Corporation at
the principal executive offices of the Corporation not less than 120 days prior
to the first anniversary of the preceding year's annual meeting of stockholders;
provided, however, that if the date of the annual meeting of stockholders is
advanced by more than 30 days prior to or delayed by more than 60 days after
such anniversary date, notice by the stockholder to be timely must be so
delivered not later than the close of business on the later of the 120th day
prior to such annual meeting or the 10th day following the day on which the
public announcement of the date of such meeting is first made. A stockholders's
notice to the Secretary shall set forth as to each item of business the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the meeting, and the reasons for
conducting business at the meeting, (b) the name and the record address of the
stockholder or stockholders proposing such business, (c) the number of shares of
stock of the Corporation which are beneficially held by such stockholder or
stockholders, (d) any material interest of the stockholder in such business, and
(e) whether such stockholder or stockholders intend to solicit or participate in
the solicitation of proxies in favor of such proposal. The presiding officer of
the meeting may refuse to acknowledge the proposal of any stockholder not made
in compliance with this Section 2.09. Notwithstanding anything in these By-laws
to the contrary, no business shall be brought before or conducted at an annual
meeting except in accordance with the procedures set forth in this Section 2.09.
ARTICLE III
-----------
DIRECTORS
---------
3.01 FUNCTIONS AND DEFINITION. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors of the
Corporation.
3.02 QUALIFICATIONS AND NUMBER. The number of directors shall be eight. The
number of directors may be increased or decreased by amendment of this paragraph
3.02 except as may otherwise be provided in the Certificate of Incorporation.
3.03 NOMINATION OF DIRECTOR CANDIDATES. Nominations for the election of
directors may be made by the Board of Directors or a committee appointed by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally or, if applicable, by any holder of any class or classes of
stock or series thereof are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation. However, any stockholder
entitled to vote in the election of directors generally may nominate one or more
persons for election as directors at a meeting only if written notice of such
stockholder's intent to make such nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation not later than (i) with respect to an election to
be held at an annual meeting of stockholders, not less than 120 days prior to
the first anniversary of the preceding year's annual meeting of stockholders;
provided, however, that if the date of the annual meeting of
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stockholders is advanced by more than 30 days prior to or delayed by more than
60 days after such anniversary date, notice by the stockholder to be timely must
be so delivered not later than the close of business on the later of the 120th
day prior to such annual meeting or the 10th day following the day on which the
public announcement of the date of such meeting is first made and (ii) with
respect to an election to be held at a special meeting of stockholders for the
election of directors, a reasonable time in advance of the meeting. For purposes
of this Section 3.03, a "reasonable time in advance of the meeting" is at least
fifteen days before the date that the proxy statement in connection with such
meeting is to be mailed to the stockholders. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) whether such
stockholder intends to solicit or participate in the solicitation of proxies in
favor of the election of such nominee or nominees, (e) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended
to be nominated, by the Board of Directors; and (f) the consent of each nominee
to serve as a director of the Corporation if so elected. The presiding officer
at the meeting may refuse to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
3.04 ELECTION AND TERM. Commencing with the 1999 Annual Meeting of
Stockholders, the directors shall be classified with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, one class to hold office initially for a term expiring at the 2000
Annual Meeting of Stockholders, another class to hold office initially for a
term expiring at the 2001 Annual Meeting of Stockholders, and another class to
hold office initially for a term expiring at the 2002 Annual Meeting of
Stockholders, with the members of each class to hold office until their
successors have been duly elected and qualified. At each Annual Meeting of
Stockholders, the successors to the class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the Annual
Meeting of Stockholders held in the third year following the year of their
election and until their successors have been duly elected and qualified. Any
director may resign at any time upon written notice to the Corporation.
Thereafter, directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the first annual meeting of stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal. In the interim between annual meetings of stockholders
or special meetings of stockholders called for the election of directors and/or
for the removal of one or more directors and for the filling of any vacancy in
that connection, newly created directorships resulting from any increase in the
authorized number of directors and any vacancies in the Board of Directors,
including unfilled vacancies resulting from the removal of directors for cause
or without cause, may be filled
8
<PAGE>
by the vote of a majority of the remaining directors then in office, although
less than a quorum, or by the sole remaining director.
3.05 MEETINGS.
--------
(a) TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
(b) PLACE. Meetings shall be held at the principal office of the
Corporation in the state of Illinois or at such other place within or without
the State of Delaware as shall be fixed by the Board.
(c) CALL. No call shall be required for regular meetings for which the
time and place has been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, of the Deputy Chairman of the
Board, if any, of the Vice-Chairman of the Board, if any, of the President, or
of the majority of the directors in office.
(d) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Without limitation of the foregoing, written notice mailed,
postage prepaid, to the address of a director shown on the records of the
Corporation not later than 72 hours prior to the convening of such meeting shall
be in sufficient time for such convenient assembly. Notice need not be given to
any director or to any member of a committee of directors who submits a written
waiver of notice signed by him before or after the time stated therein.
Attendance of any such person at a meeting shall constitute a waiver of notice
of such meeting, except when he attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any written waiver of notice.
(e) QUORUM AND ACTION. A majority of the whole Board of Directors
shall constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon one-third of the whole Board shall constitute a quorum. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
vote of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. Notwithstanding the foregoing, (i)
vacancies and newly created directorships may be filled as provided in Section
3.04 of these By-Laws and (ii) the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum, may authorize a contract or transaction between the Corporation and a
party described in Section 144(a) of the
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General Corporation Law when permitted by subparagraph (1) thereof or when
permitted by any other provision of law.
Any member or members of the Board of Directors, or of any committee
designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
(f) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Deputy
Chairman of the Board, if any and if present and acting, the Vice-Chairman of
the Board, if any and if present and acting, or the President, if present and
acting, or any other director chosen by the Board, shall preside.
(g) COMPENSATION. The Board of Directors, irrespective of any personal
interest of any of its members, shall have authority to establish the
compensation of all directors for services to the Corporation as directors,
officers, or otherwise. By resolution of the Board of Directors, the directors
may be paid their expenses, if any, of attendance at each meeting of the Board
(h) PRESUMPTION OF ASSENT. A director who is present at a meeting of
the Board of Directors at which action on any corporate matter is taken shall be
conclusively presumed to have assented to the action taken, unless his dissent
shall have been entered in the minutes of the meeting or unless he either shall
have filed his written dissent to the action with the person acting as the
secretary of the meeting before the adjournment thereof or shall have forwarded
such dissent by registered mail to the Secretary of the Corporation within 24
hours after the adjournment of the meeting. The right to dissent shall not apply
to a director who voted in favor of the action.
3.06 REMOVAL OF DIRECTORS. Any director or the entire Board of Directors
may be removed, but only for cause, by the affirmative vote of (a) holders of at
least 75% of the voting power of the shares then entitled to vote at an election
of directors, or (b) a majority of the Board of Directors.
3.07 COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The board may
designate one or more directors as alternative members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of any member of any such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation other than a power or
authority which such committee expressly may
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not have pursuant to Section 141(c) of the General Corporation Law and, unless
the resolution, By-Laws or Certificate of Incorporation so provides, no
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a certificate of ownership or merger pursuant
to Section 253 of the General Corporation Law. Any such committee may authorize
the seal of the Corporation to be affixed to all papers which may require it. If
the Board designates an Executive Committee, such Executive Committee shall have
all the power and authority which may be exercised by a committee pursuant to
this Section 3.07.
3.08 WRITTEN ACTION. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
ARTICLE IV
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OFFICERS
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The officers of the Corporation shall consist of a President, a Secretary,
a Treasurer, and, if deemed necessary, expedient, or desirable by the Board of
Directors, a Chairman of the Board, a Deputy Chairman of the Board, a
Vice-Chairman of the Board, an Executive Vice-President, one or more other
Vice-Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers with such title as the resolution of the
Board of Directors choosing them shall designate. Except as may otherwise be
provided in the resolution of the Board of Directors choosing him, no officer
other than the Chairman, Deputy Chairman or Vice-Chairman of the Board, if any,
need be a director. Any number of offices may be held by the same person, as the
directors may determine, except that no person may hold the offices of President
and Secretary simultaneously.
Unless otherwise provided in the resolution choosing him, each officer
shall be chosen for a term which shall continue until the meeting of the Board
of Directors following the next annual meeting of stockholders and until his
successor shall have been chosen and qualified.
All officers of the Corporation shall have such authority and perform such
duties in the management and operation of the Corporation as shall be prescribed
in the resolutions of the Board of Directors designating and choosing such
officers and prescribing their authority and duties, and shall have such
additional authority and duties as are incident to their office except to the
extent that such resolutions may be inconsistent therewith. The Secretary or an
Assistant Secretary of the Corporation shall record all of the proceedings of
all meetings and actions in writing of stockholders, directors, and committees
of directors in a book to be kept for that purpose, and shall exercise such
additional authority and perform such additional duties as the Board shall
assign to him. Any officer may be removed, with or without cause, by the Board
of Directors. Any vacancy in any office may be filled by the Board of Directors.
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ARTICLE V
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FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
ARTICLE VI
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CONTROL OVER BY-LAWS
--------------------
These By-Laws may be altered, amended or repealed and new By-Laws may be
adopted by the Board of Directors. Subject to the provisions of the Certificate
of Incorporation, these By-Laws may also be altered, amended or repealed by the
stockholders of the Corporation.
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