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ARTICLES OF INCORPORATION
OF
HALLMARK CAPITAL CORP.
The undersigned, acting as incorporator of a corporation under the
Wisconsin Business Corporation Law ("WBCL"), adopts the following Articles of
Incorporation for such corporation:
ARTICLE I. Corporate Name. The name of the corporation is Hallmark
Capital Corp. (the "Corporation").
ARTICLE II. Duration. The duration of the Corporation is perpetual.
ARTICLE III. Purpose. The Corporation is organized for the purpose of
engaging in any lawful activity for which corporations may be organized under
the laws of the State of Wisconsin.
ARTICLE IV. Capital Stock. The total number of shares of all classes of
capital stock which the Corporation is authorized to issue is eight million
(8,000,000) of which six million (6,000,000) shall be common stock, $1.00 par
value per share ("Common Stock") and two million (2,000,000) shall be preferred
stock, $1.00 par value per share ("Preferred Stock"). Shares may be issued by
the Corporation from time to time as approved by its Board of Directors
("Board") and without shareholder approval.
The consideration for issuance of shares shall be paid in full before
their issuance and shall not be less than the par value per share. Consideration
for shares shall be paid in whole or in part in money, in other property,
tangible or intangible, or in labor or services performed for the Corporation.
Absent fraud in the transaction, the judgment of the Board as to the value of
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consideration received for shares shall be conclusive. Upon payment of such
consideration, the shares shall be deemed fully paid and nonassessable by the
Corporation.
A description of the different classes and series of the Corporation's
capital stock and a statement of the powers, designations, preferences,
limitations and relative rights of shares of each class and series are as
follows:
A. Common Stock. Except as provided in this Article IV (or in any
resolution or resolutions adopted by the Board pursuant hereto), exclusive
voting power shall be vested in the Common Stock, holders thereof being entitled
to one vote for each share of 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 preference over the Common Stock, holders of Common Stock shall be
entitled to such dividends as may be declared by the Board out of funds lawfully
available therefor. Upon any liquidation, dissolution or winding up of the
affairs of the Corporation, holders of Common Stock shall be entitled to receive
pro rata the remaining assets of the Corporation after payment in full to the
holders of any class of stock having preference over the Common Stock of any
sums to which they may be entitled.
B. Preferred Stock. Shares of Preferred Stock may be issued from time
to time, in one or more classes or series, in any manner permitted by law
pursuant to a resolution or resolutions of the Board, each class or series to be
appropriately designated prior to issuance of any shares thereof. The Board is
authorized to act under WBCL Section 180.0602 (or any successor statutory
provision) to determine with respect to any class or series of shares of
preferred stock the preference, limitations and relative rights, in whole or in
part, before the issuance of any shares of that class or series. The Board also
may create one or more series within a class and, with respect to any series,
determine the number of shares, the distinguishing designation and
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preferences, limitations and relative rights, in whole or in part, before
issuance of shares of that series.
C. Voting Restrictions.
1. The following definitions shall apply to this Section C of this
Article IV:
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 the date of filing of these Articles of
Incorporation; 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 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
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deemed to be the beneficial owner of any voting shares solely
by reason of a revocable proxy granted for a particular
meeting of shareholders, 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 this Corporation;
and provided further, however, that no director or officer of this
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 neither any
employee stock ownership or similar plan of this Corporation or any
subsidiary of this 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 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
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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, outstanding
Common Stock shall include only Common Stock then outstanding and shall
not include any Common Stock which may be issuable by this Corporation
pursuant to any agreement, or upon the exercise of conversion rights,
warrants or options, or otherwise.
c. The term "person" includes an individual, group acting in
concert, corporation, partnership, association, joint stock company,
trust, unincorporated organization or similar company, and/or a
syndicate or any other group formed for the purpose of acquiring,
holding or disposing of equity securities of the Corporation.
d. The term "acquire" includes every type of acquisition,
whether effected by purchase, exchange, operation of law or otherwise.
2. Any provision (excepting Section C.7. of this Article IV) in these
Articles of Incorporation to the contrary notwithstanding, no person shall, for
a period of five (5) years from the effective date of completion of the
conversion of West Allis Savings Bank from mutual to stock form (which entity
shall become a wholly-owned subsidiary of the Corporation upon completion of
holding company formation), directly or indirectly, offer to acquire or acquire
the beneficial ownership of more than 10% of any class of equity security of the
Corporation (without the prior written approval of the Wisconsin Commissioner of
Savings and Loan ("Commissioner")); provided that this limitation shall not
apply to any purchase of shares by underwriters retained by the Corporation in
connection with a public offering of stock of the Corporation or to the purchase
of shares by a tax-qualified employee stock benefit plan exempt
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from the approval requirements of Chapter S-B 21.16(3) of the Wisconsin
Administrative Code (the "Commissioner's Regulations").
3. Any provision (excepting Section C.7. of this Article IV) in these
Articles of Incorporation to the contrary notwithstanding, if any person
acquires direct or indirect beneficial ownership of more than 10% of the then
outstanding shares of Common Stock of the Corporation, whether in violation of
Section C.2. or subsequent to the expiration of five (5) years from completion
of the conversion of West Allis Savings Bank, any shares of Common Stock
beneficially owned in excess of 10% (i) shall not be counted as shares entitled
to vote, (ii) shall not be voted by any person or counted as voting shares in
connection with any matter submitted to the shareholders for a vote, and (iii)
shall not be counted as outstanding for purposes of determining a quorum or the
affirmative vote necessary to approve any matter submitted to the shareholders
for a vote; provided that this limitation shall not apply to any purchase of
shares by underwriters retained by the Corporation in connection with a public
offering of stock of the Corporation or to the purchase of shares by a
tax-qualified employee stock benefit plan exempt from the approval requirements
of Chapter S-B 21.16(3) of the Commissioner's Regulations.
4. Any construction, application, or determination made by the Board
pursuant to this Section C, in good faith and on the basis of information and
assistance then reasonably available, shall be conclusive and binding upon the
Corporation and its shareholders.
5. If any provision (or portion thereof) of this Section C is found to
be invalid, prohibited or unenforceable, the remaining provisions (or portions
thereof) shall remain in full force and effect, and shall be construed as if the
invalid, prohibited or unenforceable provision had been stricken or otherwise
rendered inapplicable, it being the intent of the Corporation and its
shareholders that the remaining provisions (or portions thereof) of this Section
C remain to
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the fullest extent permitted by law, applicable and enforceable as to all
shareholders (including shareholders owning Common Stock in excess of 10% of the
total shares outstanding) notwithstanding any such finding.
6. The provisions of this Section C of Article IV shall not apply to an
acquisition of more than 10% of the shares of Common Stock if such acquisition
has been approved by a majority of disinterested directors; provided, such
approval shall be effective only if obtained at a meeting where a quorum of
disinterested directors is present. At a meeting where such quorum is present,
the disinterested directors shall have the power to construe and apply the
provisions of this Section C of Article IV and to make all determinations
necessary or desirable to implement its provisions, including but not limited to
matters with respect to (a) the number of shares beneficially owned by any
person, (b) whether a person has an agreement, arrangement, or understanding
with another as to the matters referred to in the definition of beneficial
ownership, or (c) the application of any other material fact relating to the
applicability or effect of this Section C of Article IV.
7. This Section C is in addition to, and is not intended to make
inapplicable, Section 180.1150 of the WBCL (or any successor statutory
provision). The Corporation expressly elects to be subject to Section 180.1150
of the WBCL as if it were an "issuing public corporation" as defined in Section
180.1130(8) of the WBCL.
ARTICLE V. Repurchase of Shares. The Corporation may from time to time,
pursuant to authorization by the Board and without shareholder action, purchase
or otherwise acquire shares of any class or series of capital stock, or any
bonds, debentures, notes, scrip, warrants, obligations, evidences of
indebtedness, or other securities of the Corporation in such manner, upon such
terms, and in such amounts as the Board shall determine; subject, however, to
such
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limitations or restrictions as may be contained in the express terms of any
class or series of shares of capital stock of the Corporation outstanding at the
time of the purchase or acquisition or as imposed by law or regulation.
ARTICLE VI. Internal Affairs.
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board. In addition to the powers and authority
expressly conferred by statute, these Articles of Incorporation, or the By-laws,
the directors are empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation.
B. Subject to the rights of holders of any class or series of Preferred
Stock, and except as otherwise provided by the WBCL, special meetings of
shareholders of the Corporation may be called only by the Board pursuant to a
resolution adopted by a majority of the Board.
C. The Board of the Corporation shall consist of not less than five (5)
nor more than twenty-five (25) members, as determined in the manner specified in
the Corporation's By-laws, as amended from time to time. The names of the
initial members of the Board are as follows:
James D. Smessaert
Floyd D. Brink
Milton Dalin
Charles E. Rickheim
Jerome A. Weitzer
D. The Board, other than those members who may be elected by the
holders of any class or series of capital stock having preference over the
Common Stock as to dividends or upon liquidation, shall be divided into three
classes. At the first annual meeting of shareholders following the effective
date of these Articles of Incorporation, directors of the first class shall be
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elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for a
term expiring at the second succeeding annual meeting, and directors of the
third class shall be elected to hold office for a term expiring at the third
succeeding annual meeting, and, with respect to directors of each class, until
their respective successors are elected and qualified. At each subsequent annual
meeting of shareholders, directors elected to succeed those whose terms are
expiring shall be elected for a term to expire at the third succeeding annual
meeting of shareholders and until their respective successors are elected and
qualified.
E. Directors may be removed from office only for cause and by (i) the
affirmative vote of the holders of not less than 80% of the issued and
outstanding shares of capital stock of the Corporation entitled to vote
generally in an election of directors, voting at a duly constituted meeting of
shareholders called for that purpose, or (ii) a majority of the total number of
directors. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock of the Corporation have the right,
voting separately as a class, to elect one or more directors of the Corporation,
only the shareholders of that class or series of Preferred Stock may participate
in the vote to remove that director, and the affirmative vote of holders of not
less than 80% of the issued and outstanding shares of that class or series of
Preferred Stock will be required to remove that director from office for cause.
F. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or from vacancies resulting from death,
resignation, retirement, removal from office or other cause may be filled only
by a majority vote of the directors then in office, though less than a quorum,
and directors so chosen shall hold office for a term expiring at the annual
meeting of
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shareholders at which the term of office of the class to which they have been
elected by the directors expires.
G. No person shall be eligible for election, reelection, appointment or
reappointment to the Board who:
1. beneficially owns less than 100 shares of Common Stock;
2. has been convicted of a felony;
3. is not eligible for whatever reason to serve on the board
of directors of a Wisconsin-chartered savings bank; or
4. is at such time adjudicated or otherwise legally declared
an incapacitated person by reason of mental weakness.
H. There shall be no cumulative voting by shareholders of any class or
series in the election of directors of the Corporation.
ARTICLE VII. Notice, Nominations and Proposals by Shareholders.
A. Nominations for the election of directors and proposals for any
business to be considered by shareholders at any annual or special meeting of
shareholders may be made by the Board or by any shareholder of the Corporation
entitled to vote generally in the election of directors. In order for a
shareholder of the Corporation to make any such nominations and/or proposals,
and for such nominations or other business to be properly before the annual or
special meeting, he or she must give notice thereof in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary of
the Corporation not later than the close of business on the tenth day following
the day on which notice of the meeting was mailed to shareholders. Each such
notice given by a shareholder with respect to nominations for election of
directors shall set forth (i) the name, age, business address and residence
address of each
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nominee proposed in such notice, (ii) the principal occupation or employment of
each such nominee, (iii) the number of shares of stock of the Corporation
beneficially owned by each such nominee; (iv) a description of all arrangements
or understandings between such shareholders and such nominees and any other
person (naming such person) pursuant to which the nomination is to be made by
the shareholders; (v) such other information as would be required to be
included, or would be otherwise required to be disclosed, in a proxy statement
soliciting proxies for the election of the proposed nominee pursuant to
Regulation 14A of the Securities Exchange Act of 1934, as amended, including any
information that would be required to be included had the nominee been nominated
by the Board of Directors; (vi) the written consent of each nominee to be named
in a proxy statement as a nominee and to serve, if elected, as a director, and
(vii) as to the shareholder giving such notice (a) his or her name and address
as they appear on the Corporation's books, (b) the class and number of shares of
the Corporation which are beneficially owned by such shareholder, and (c) a
representation that such shareholder is a holder of shares entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting to make
the nomination. In addition, the shareholder making such nomination shall
promptly provide any other information reasonably requested by the Corporation.
B. Each notice given by a shareholder to the Secretary with respect to
business proposals to be brought before a meeting shall set forth in writing as
to each matter: (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting;
(ii) the name and address, as they appear on the Corporation's books, of the
shareholder proposing such business; (iii) the class and number of shares of the
Corporation beneficially owned by such shareholder; and (iv) any material
interest of the shareholder in such business. Notwithstanding anything in these
Articles of Incorporation to the contrary, no
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business shall be considered at an annual or special meeting except in strict
accordance with the procedures set forth in this Article VII.
C. The Chairman of the annual or special meeting of shareholders may,
if the facts warrant, determine that a nomination or proposal was not made in
accordance with the foregoing procedures, and if he or she should so determine,
he or she shall declare to the meeting that the defective nomination or proposal
shall be disregarded. This provision shall not require the holding of any
adjourned or special meeting for the purpose of considering a defective
nomination or proposal.
ARTICLE VIII. Indemnification.
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of service as a director or officer of the Corporation or is or was
serving or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, including, without limitation, any
subsidiary, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in their capacity as a
director or officer or in any other capacity while serving as such, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the WBCL, as the same exists or may hereafter be amended (but, in
the case of any amendment, only to the extent the amendment permits the
Corporation to provide broader indemnification rights than such law permitted
prior to amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, Employee Retirement Income Security Act of
1974 excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by the
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indemnitee in connection therewith; provided, however, that, except as provided
in Section C of this Article VIII with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify such indemnitee in
connection with a proceeding (or part thereof) initiated by the indemnitee only
if the proceeding (or part thereof) was authorized by the Board pursuant to the
WBCL on written request by the indemnitee to the Corporation.
B. The right to indemnification conferred in Section A of this Article
VIII shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition
("advancement of expenses"); provided, that if the WBCL requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
("undertaking"), by or on behalf of the indemnitee, to repay all amounts so
advanced if it is ultimately determined by final judicial decision from which
there is no further right to appeal ("final adjudication") that the indemnitee
is not entitled to indemnification for expenses under this Section B or
otherwise, together with a written affirmation by the indemnitee of his or her
good faith belief that he or she has not breached or failed his or her duties to
the Corporation. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article VIII 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.
C. The rights to indemnifications and to advancement of expenses
conferred in this Article VIII shall not be exclusive of any other right which
any person may have or hereafter
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acquire under any statute, these Articles of Incorporation, By-laws, agreement,
vote of shareholders or directors, or otherwise.
D. 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, regardless of whether the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the WBCL.
E. The Corporation may, as authorized from time to time by a majority
vote of disinterested directors, grant indemnification and advancement of
expenses to any employee or agent of the Corporation or any person who is or was
serving or has agreed to serve at the request of the Corporation as an employee
or agent of another corporation, including, without limitation, any subsidiary
of the Corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, to the fullest
extent of this Article VIII permits indemnification and advancement of expenses
for directors and officers of the Corporation.
ARTICLE IX. Limitation of Liability. A director of this Corporation
shall not be personally liable to the Corporation or its shareholders, or any
person asserting rights on behalf of the Corporation or its shareholders, for
monetary damages for breach or failure to perform any duty resulting from his or
her status unless the person asserting liability proves that the breach or
failure to perform constitutes (i) a willful failure to deal fairly with the
Corporation or its shareholders in a matter in which the director has a material
conflict of interest, (ii) a violation of criminal law, unless the director had
reasonable cause to believe his or her conduct was lawful, (iii) a transaction
from which the director received an improper personal benefit, or (iv) willful
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misconduct. If the WBCL is hereafter amended to authorize corporate action
further eliminating or limiting the personal liability of directors, the
liability of directors of the Corporation shall be eliminated or limited to the
fullest extent permitted by such law as amended.
Any repeal or modification of the foregoing paragraph by shareholders
of the Corporation shall not adversely affect any right or protection of a
director existing at the time of such repeal or modification.
ARTICLE X. Business Combinations.
A. The Corporation elects to be subject to the provisions of WBCL
Sections 180.1130 to 180.1134, relating to approval of certain business
combinations and fair price provisions.
B. Any business combination (as defined in WBCL Section 180.1130) must
be approved by a majority of the disinterested directors.
C. A majority of the disinterested directors shall have the further
power to interpret all of the terms and provisions of this Article X and WBCL
Sections 108.1130 to 180.1134.
D. Nothing contained in this Article X shall be construed to relieve
any "significant shareholder," as defined in WBCL Section 180.1130 (11), from
any fiduciary obligations imposed by law.
E. This Article X is in addition to and is not intended to make
inapplicable Sections 180.1140-180.1145 of the WBCL or any successor sections.
ARTICLE XI. Registered Office. The initial registered office of the
Corporation is located in Milwaukee County, Wisconsin. The address of such
registered office is 7401 West Greenfield Avenue, P.O. Box 14307, West Allis,
Wisconsin, 53214. The name of its initial registered agent at such address is
James D. Smessaert.
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ARTICLE XII. Amendment of By-laws. In furtherance and not in limitation
of the powers conferred by statute, the Board is expressly authorized to make,
repeal, alter, amend and rescind the By-laws of the Corporation. The By-laws
shall not be made, repealed, altered, amended or rescinded by the shareholders
of the Corporation except by vote of the holders of not less than 80% of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of shareholders called for that purpose (provided that
notice of such proposed adoption, repeal, alteration, amendment or rescission is
included in the notice of such meeting).
ARTICLE XIII. Amendment of Articles of Incorporation. Except as
otherwise required by law, no amendment, addition, alteration, change or repeal
of any provision of these Articles of Incorporation shall be made, unless first
proposed by the Board of the Corporation, upon the affirmative vote of at least
two-thirds of the directors then in office at a duly constituted meeting of the
Board called expressly for such purpose, and thereafter approved by the
shareholders by a majority of the total votes eligible to be cast at a duly
constituted meeting of shareholders called expressly for such purposes;
provided, however, that, notwithstanding any other provision of these Articles
of Incorporation or any provisions 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 capital stock of this Corporation required by law or by these
Articles of Incorporation, the affirmative vote of the holders of at least 80%
of the shares entitled to vote thereon (after giving effect to the provisions of
Article IV) voting together as a single class, shall be required to amend or
repeal Articles IV, V, VI, VII, VIII, IX, X, XII, or XIII of these Articles of
Incorporation.
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ARTICLE XIV. Incorporator.
The name and address of the incorporator is as follows:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Teresa M. Fraungruber 100 East Wisconsin Avenue
Suite 3300
Milwaukee, WI 53202
</TABLE>
IN WITNESS WHEREOF, these Articles of Incorporation have been executed
in triplicate as of the 24th day of June, 1993.
/s/ Teresa M. Fraungruber
--------------------------------------
Teresa M. Fraungruber
Incorporator
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ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION, AS AMENDED
OF
HALLMARK CAPITAL CORP.
Hallmark Capital Corp., a corporation organized and existing under
Chapter 180 of the Wisconsin Business Corporation Law (the "Corporation"), does
hereby certify that the Board of Directors of the Corporation (the "Board") duly
adopted the necessary resolutions to create a new series of Preferred Stock
consisting of 60,000 shares designated as Series A Junior Participating
Preferred Stock, $1.00 par value per share, and pursuant to Section 180.0602 of
the Wisconsin Business Corporation Law ("WBCL"), and the authority conferred
upon the Board by the Articles of Incorporation, as amended, and to effectuate
the foregoing, further approved the amendment of Subsection B of Article IV of
the existing Articles of Incorporation, as amended, to read as follows:
B. PREFERRED STOCK. Shares of Preferred Stock may be issued
from time to time, in one or more classes or series, in any manner
permitted by law pursuant to a resolution or resolutions of the Board,
each class or series to be appropriately designated prior to issuance
of any shares thereof. The Board is authorized to act under WBCL
Section 180.0602 (or any successor statutory provision) to determine
with respect to any class or series of shares of preferred stock the
preference, limitations and relative rights, in whole or in part,
before the issuance of any shares of that class or series. The Board
also may create one or more series within a class and, with respect to
any series, determine the number of shares, the distinguishing
designation and preferences, limitation and relative rights, in whole
or in part, before issuance of shares of that series.
1. DESIGNATION OF SERIES: NUMBER OF SHARES. There is
designated a series of Preferred Stock titled as "Series A
Junior Participating Preferred Stock," par value $1.00 per
share (the "Series A Preferred Stock"), and the authorized
number of shares constituting the Series A Preferred Stock
shall be 60,000. Such number of authorized shares may be
increased or decreased, from time to time, by resolution of
the Board; provided, however, that no such decrease shall
reduce the number of authorized shares of the Series A
Preferred Stock to a number less than the number of shares of
the Series A Preferred Stock then outstanding, plus the number
of such shares then reserved for issuance upon the exercise of
any outstanding options, warrants or rights or the exercise of
any conversion or exchange privilege contained in any
outstanding security issued by the Corporation.
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2. DIVIDENDS AND DISTRIBUTIONS.
a. Subject to the rights of the holders
of shares of any other series of Preferred Stock (or shares of any other class
of capital stock of the Corporation) ranking senior to the Series A Preferred
Stock with respect to dividends, the holders of shares of the Series A Preferred
Stock, in preference to the holders of shares of Common Stock and of any other
class of capital stock of the Corporation ranking junior to the Series A
Preferred Stock with respect to dividends, shall be entitled to receive, when,
as and if declared by the Board out of funds legally available therefor, such
dividends, subject to the provision for adjustment hereinafter set forth, equal
to 100 times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in shares of Common Stock or
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock. In the event the Company shall at any
time after February 21, 1997 (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
b. The Board shall declare, out of funds
legally available therefor, a dividend or distribution on the Series A Preferred
Stock, as provided in paragraph (a) of this Section immediately after it has
declared a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock).
3. VOTING RIGHTS. In addition to any other voting rights
required by applicable law, the holders of shares of the Series A
Preferred Stock shall have the following voting rights:
a. Each share of the Series A Preferred
Stock shall entitle the holder thereof to 100 votes on all matters submitted to
a vote of the shareholders of the Corporation. The multiple of 100 (the "Voting
Multiple") set forth in the preceding sentence shall be adjusted from time to
time as hereinafter provided in this paragraph. In the event that the
Corporation shall at any time after the effective date of this amendment to the
Articles of Incorporation (the "Amendment") (i) declare or pay any dividend on
Common Stock payable in shares of Common Stock, or (ii) effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then, in each
such case, the Voting Multiple thereafter applicable to the determination of the
number of votes per share to which the holders of shares of the Series A
Preferred Stock shall be entitled shall be the Voting Multiple in effect
immediately prior to such event multiplied by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
<PAGE> 20
b. Except as otherwise provided in this
Amendment, in any other amendment establishing another series of Preferred Stock
(or any series of any other class of capital stock of the Corporation) or by
applicable law, the holders of the Series A Preferred Stock, the holders of
Common Stock and the holders of any other class of capital stock of the
Corporation having general voting rights shall vote together as a single class
on all matters submitted to a vote of the shareholders of the Corporation.
c. Except as otherwise provided in this
Amendment or by applicable law, the holders of the Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent provided in paragraph (b) of this Section for the taking
of any corporate action.
4. CERTAIN RESTRICTIONS.
a. Whenever dividends or other
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on outstanding shares of the Series A
Preferred Stock shall have been paid in full, the Corporation shall not:
(1) declare or pay dividends or make
any other distributions on any shares of any class of capital stock of the
Corporation ranking junior (either as to dividends or upon liquidation,
dissolution or winding up of the Corporation) to the Series A Preferred Stock;
(2) declare or pay dividends, or make
any other distributions, on any shares of any class of capital stock of the
Corporation ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up of the Corporation) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are accrued and unpaid in proportion to the
total amounts to which the holders of all such shares are then entitled;
(3) redeem, purchase or otherwise
acquire for consideration any shares of any class of capital stock of the
Corporation ranking junior (either as to dividends or upon liquidation,
dissolution or winding up of the Corporation) to the Series A Preferred Stock,
except that the Corporation may at any time redeem, purchase or otherwise
acquire any shares of such junior stock in exchange for other shares of any
class of capital stock of the Corporation ranking junior (both as to dividends
and upon dissolution, liquidation or winding up of the Corporation) to the
Series A Preferred Stock; or
(4) purchase or otherwise acquire for
consideration any shares of the Series A Preferred Stock or any shares of any
class of capital stock of the Corporation ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up of the Corporation)
with the Series A Preferred Stock, or redeem any shares of such parity stock,
except in accordance with a purchase offer made in writing or by publication to
the holders of all such shares upon such terms and conditions as the Board,
after taking into
<PAGE> 21
consideration the respective annual dividend rates and the other relative
powers, preferences and rights of the respective series and classes of such
shares, shall determine in good faith will result in fair and equitable
treatment among the respective holders of shares of all such series and classes.
b. The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise acquire for consideration
any shares of any class of capital stock of the Corporation unless the
Corporation could, under paragraph (a) of this Section, purchase or otherwise
acquire such shares at such time and in such manner.
5. REACQUIRED SHARES. Any shares of the Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after such purchase
or acquisition. All such cancelled shares shall thereupon become
authorized and unissued shares of Preferred Stock and may be reissued
as part of any new series of Preferred Stock, subject to the conditions
and restrictions on issuance set forth in the Articles of Incorporation
of the Corporation, as amended from time to time, in any other
amendment establishing another series of Preferred Stock (or any series
of any other class of capital stock of the Corporation) or in any
applicable law.
6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation (whether voluntary or otherwise), dissolution or winding up
of the Corporation, no distribution shall be made (a) to the holders of
shares of any class of capital stock of the Corporation ranking junior
(either as to dividends or upon liquidation, dissolution or winding up
of the Corporation) to the Series A Preferred Stock unless, prior
thereto, the holder of each outstanding share of the Series A Preferred
Stock shall have received an amount equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to the
date of such payment, plus an amount equal to the greater of (i) $100,
and (ii) an aggregate amount, subject to adjustment as hereinafter
provided in this Section, equal to 100 times the aggregate per share
amount to be distributed to the holders of Common Stock, or (b) to the
holders of shares of any class of capital stock of the Corporation
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up of the Corporation) with the Series A
Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event that the
Corporation shall at any time after the effective date of this
Amendment (a) declare or pay any dividend on Common Stock payable in
shares of Common Stock, or (b) effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then, in each such case, the aggregate amount per share to which
the holders of shares of the Series A Preferred Stock would have been
entitled to receive immediately prior to such event pursuant to clause
(a)(ii) of the preceding sentence shall be adjusted by multiplying such
aggregate per share amount by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding immediately after
such event and the denominator of which shall be
<PAGE> 22
the number of shares of Common Stock that were outstanding immediately
prior to such event.
7. CONSOLIDATION, MERGER, ETC. In the event that the
Corporation shall be a party to any consolidation, merger, combination
or other transaction in which the outstanding shares of Common Stock
are converted or changed into or exchanged for other capital stock,
securities, cash or other property, or any combination thereof, then,
in each such case, each share of the Series A Preferred Stock shall at
the same time be similarly converted or changed into or exchanged for
an aggregate amount, subject to adjustment as hereinafter provided in
this Section, equal to 100 times the aggregate amount of capital stock,
securities, cash and/or other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is being
converted or changed or exchanged. In the event that the Corporation
shall at any time after the effective date of this Amendment declare or
pay any dividend on Common Stock payable in shares of Common Stock or
effect a subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then, in each such case, the
aggregate amount per share to which the holders of shares of the Series
A Preferred Stock would have been entitled to receive immediately prior
to such event pursuant to the preceding sentence shall be adjusted by
multiplying such aggregate per share amount by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
8. NO REDEMPTION. The shares of the Series A Preferred Stock
shall not be redeemable at any time.
9. RANK. Unless otherwise provided in the amendment
establishing another series of Preferred Stock after the effective date
of this Amendment, the Series A Preferred Stock shall rank, as to the
payment of dividends and the making of any other distribution of assets
of the Corporation, senior to the Common Stock, but junior to all other
series of the Preferred Stock.
10. AMENDMENTS. The Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences and rights of the Series A
Preferred Stock so as to adversely affect any thereof without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of the Series A Preferred Stock, voting separately
as a single class.
11. FRACTIONAL SHARES. Fractional shares of the Series A
Preferred Stock may be issued, but, unless the Board shall otherwise
determine, only in multiples of one one-hundredth of a share. The
holder of any fractional share of the Series A Preferred Stock shall be
entitled to receive dividends, participate in distributions, exercise
voting rights and have the benefit of all other powers, preferences and
rights relating to the Series A Preferred Stock in the same proportion
as such fractional share bears to a whole share.
<PAGE> 23
The foregoing constitutes the text of this Amendment. None of the
shares of Series A Junior Participating Preferred Stock authorized thereby has
been issued as of the date hereof.
This Amendment to the Articles of Incorporation, as amended, of the
Corporation was adopted by the Board of Directors of the Corporation at a
meeting of the Board of Directors held on February 21, 1997 in accordance with
Section 180.0602 of the Wisconsin Business Corporation Law. Shareholder approval
of this Amendment was not required.
Dated as of the 21st day of February, 1997.
By: /s/ James D. Smessaert
-----------------------------------
James D. Smessaert,
President/Chief Executive
Officer/Chairman of the Board
This document was drafted by and is returnable to:
JAMES P. PETERSON, ESQ.
MICHAEL BEST & FRIEDRICH
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WI 53202
(414) 271-6560
<PAGE> 24
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
HALLMARK CAPITAL CORP.
Hallmark Capital Corp., a corporation organized and existing under
Chapter 180 of the Wisconsin Statutes, does hereby certify as follows:
1. The name of the corporation is Hallmark Capital Corp.
2. The Articles of Incorporation of the corporation are amended
as follows:
ARTICLE I
The name of the corporation is Ledger Capital Corp.
3. The above amendment to the Articles of Incorporation of the
corporation was duly adopted in accordance with Section 180.1003 of the
Wisconsin Statutes by the Board of Directors of the corporation on August 22,
2000 and by the Shareholders of the corporation on October 25, 2000.
Dated as of the 26th day of October, 2000.
/s/ James D. Smessaert
-------------------------------------
James D. Smessaert
President and Chief Executive Officer
This document was drafted by and is returnable to:
TERESA M. LEVY, ESQ.
MICHAEL BEST & FRIEDRICH LLP
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WISCONSIN 53202-4108
(414) 271-6560
