EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION OF
FIRST MIDWEST BANCORP, INC.
ARTICLE FIRST. Name.
The name of the Corporation is FIRST MIDWEST BANCORP, INC.
ARTICLE SECOND. Registered Agent.
The registered office of the Corporation in the State of Delaware is located
at 306 South State Street, in the City of Dover, County of Kent. The name of
its registered agent at such address is United States Corporation Company.
ARTICLE THIRD. Purpose.
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.
ARTICLE FOURTH. Authorized Stock
The total number of shares of stock which the Corporation shall have authority
to issue is Thirty-One Million (31,000,000) shares, of which One Million
(1,000,000) shares shall be shares of Preferred Stock without par value
(hereinafter sometimes referred to as "Preferred Stock"), and Thirty Million
(30,000,000) shares shall be shares of Common Stock, $0.01 par value per share
(hereinafter sometimes referred to as "Common Stock").
PART I - PREFERRED STOCK
The Board of Directors is expressly authorized to adopt, from time to
time, a resolution or resolutions providing for the issue of Preferred
Stock in one or more series, to fix the number of shares in each such
series and to fix the designations and the powers, preferences and
relative, optional or other special rights, and the qualifications,
limitations and restrictions thereof, of each such series. The
authority of the Board of Directors with respect to each such series
shall include a determination of the following (which may vary as
between the different series of Preferred Stock):
(a) The number of shares constituting the series and the distinctive
designation of the series;
(b) The dividend rate on the shares of the series, the conditions and
dates upon which dividends thereon shall be payable, the extent,
if any, to which dividends thereon shall be cumulative, and the
relative rights of preference, if any, of payment of dividends
thereon;
(c) Whether or not the shares of the series are redeemable and, if
redeemable, including whether such shares shall be redeemable for
cash, property or rights or any combination thereof and the times
during which such shares shall be redeemable and the amount per
share payable in case of redemption, which amount may, but need
not, vary according to the time and circumstances of such action;
(d) The amount payable in respect of the shares of the series, in the
event of any liquidation, dissolution or winding up of the
Corporation, which amount may, but need not, vary according to the
time or circumstances of such action, and the relative rights of
preference, if any, of payment of such amount;
(e) Any requirement as to a sinking fund for the shares of the series,
or any requirement as to the redemption, purchase or other
retirement by the Corporation of the shares of the series;
(f) The right, if any, to exchange or convert shares of the series
into shares of any other series or class of stock of the
Corporation and the rate or basis, time, manner and condition of
exchange or conversion;
(g) The voting rights, if any, to which the holders of shares of the
series shall be entitled; and
(h) Any other term, condition or provision [not involving any further
participation in the assets or profits of the Corporation other
than as permitted and provided for pursuant to the provisions of
paragraphs (b), (c), (d), (e) and (f) of this Part I] with respect
to the series as the Board of Directors may deem advisable and as
shall not be inconsistent with the provisions of this Article
Fourth.
PART II - COMMON STOCK
(a) Dividends. Subject to any rights to receive dividends to which
the holders of any outstanding Preferred Stock may be entitled,
the holders of the 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 therefore.
(b) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other
liabilities of the Corporation and the preferential amounts to
which the holders of any outstanding Preferred Stock shall be
entitled, the holders of the Common Stock shall be entitled to
share ratably in the remaining assets of the Corporation. The
merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or a
sale of all or substantially all of the assets of the Corporation,
or any purchase or redemption of shares of stock of the
Corporation of any class, shall not be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this
paragraph (b).
(c) Voting. Each outstanding share of Common Stock of the Corporation
shall entitle the holder thereof to one vote, and, except as
otherwise stated or expressed in a resolution or resolutions
adopted by the Board of Directors providing for the issue of any
Preferred stock or as otherwise provided by law, the exclusive
voting power for all purposes shall be vested in the holders of
Common Stock.
PART III - GENERAL PROVISIONS
(a) No Stockholder Consents in Lieu of Voting. No action required to
be taken or which may be taken at any annual or special meeting of
stockholders of the Corporation may be taken without a meeting,
and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
(b) Right to Call Special Meetings. Special meetings of the
stockholders of the Corporation may be called only by the Board of
Directors or the Chairman of the Board of Directors or President
of the Corporation; provided, however, that, notwithstanding the
foregoing, a special meeting of stockholders may be called by the
holders of at least 51% of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (the "Voting Stock")
solely for the purpose of removing a director or directors for
cause [it being understood that, for purposes of this paragraph
(b), each share of the Voting Stock shall have the number of votes
granted to it pursuant to this Article Fourth].
(c) Removal of Directors. No director may be removed from office
except for cause; provided, that, in addition to any affirmative
vote required by law or any other provision of this Restated
Certificate of Incorporation, the removal of any director shall
require the affirmative vote of the holders of at least 67% of the
voting power of the then outstanding Voting Stock [it being
understood that, for purposes of this paragraph (c), each share of
the Voting Stock shall have the number of votes granted to it
pursuant to this Article Fourth], and such affirmative vote shall
be required notwithstanding the fact that a lesser percentage may
be specified by law or in any agreement with any national
securities exchange or otherwise.
(d) Advance Notice of Stockholder Proposals. At any annual or special
meeting of stockholders, proposals by stockholders and persons
nominated by stockholders for election as directors shall be
considered only if advance notice thereof has been timely given as
provided herein by a stockholder of record as of the time of such
notice who is entitled to vote at the meeting and such proposals
or nominations are otherwise proper for consideration under
applicable law and this Restated Certificate of Incorporation and
the By-laws of the Corporation. Notice of any proposal to be
presented by any stockholder or of the name of any person to be
nominated by any stockholder for election as a director of the
Corporation at any meeting of stockholders shall be delivered to
the Secretary of the Corporation at its principal executive office
not less than 120 nor more than 180 days prior to the date of the
meeting; provided, however, that if the date of the meeting is
first publicly announced or disclosed (in a public filing or
otherwise) less than 130 days prior to the date of the meeting,
such advance notice shall be given not more than 10 days after
such date is first so announced or disclosed. Public notice shall
be deemed to have been given more than 130 days in advance of the
annual meeting if the Corporation shall have previously disclosed,
in the By-laws or otherwise, that the annual meeting in each year
is to be held on a determinable date, unless and until the Board
determines to hold the meeting on a different date. Any
stockholder who gives notice of any such proposal shall deliver
therewith the text of the proposal to be presented and a brief
written statement of the reasons why such stockholder favors the
proposal and setting forth such stockholder's name and address,
the number and class of all shares of each class of stock of the
Corporation beneficially owned by such stockholder and any
material interest of such stockholder in the proposal (other than
as a stockholder). Any stockholder desiring to nominate any
person for election as a director of the Corporation shall deliver
with such notice a statement in writing setting forth the name of
the person to be nominated, the number and class of all shares of
each class of stock of the Corporation beneficially owned by such
person, the information regarding any such person required by
paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted
by the Securities and Exchange Commission (or the corresponding
provisions of any regulation subsequently adopted by the
Securities and Exchange Commission applicable to this
Corporation), such person's signed consent to serve as a director
of the Corporation if elected, such stockholder's name and address
and the number and class of all shares of each class of stock of
the Corporation beneficially owned by such stockholder. As used
herein, shares "beneficially owned" shall mean all shares as to
which such person, together with such person's affiliates and
associates (as defined in Rule 12b-2 under the Securities Exchange
Act of 1934), may be deemed to beneficially own pursuant to Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as well
as all shares as to which such person, together with such person's
affiliates and associates, has the right to become the beneficial
owner pursuant to any agreement or understanding, or upon the
exercise of warrants, options or rights to convert or exchange
(whether such rights are exercisable immediately or only after the
passage of time or the occurrence of conditions). The person
presiding at the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the
meeting, shall determine whether such notice has been duly given
and shall direct that proposals and nominees not be considered if
such notice has not been given.
ARTICLE FIFTH. Board of Directors.
(a) The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors.
(b) The number of directors constituting the Board of Directors of the
Corporation shall be such number, not fewer than three nor more than
twenty, as shall be fixed from time to time by resolution of the Board
of Directors adopted by the affirmative vote of at least a majority of
all members thereof.
(c) The Board of Directors shall be and is divided into three classes, Class
I, Class II and Class III, which shall be as nearly equal in number as
possible. Each director shall serve for a term ending on the date of
the third annual meeting of stockholders of the Corporation following
the annual meeting at which such director was elected; provided,
however, that (1) each director in Class I elected at the annual meeting
of stockholders in 1985 shall hold office until the annual meeting of
stockholders in 1986, (2) each director in Class II elected at the
annual meeting of stockholders in 1985 shall hold office until the
annual meeting of stockholders in 1987, and (3) each director in Class
III elected at the annual meeting of stockholders in 1985 shall hold
office until the annual meeting of stockholders in 1988.
(d) In the event of any increase or decrease in the authorized number of
directors, (1) each director then serving as such shall nevertheless
continue as a director of the class of which he or she is a member until
the expiration of his or her current term, or his or her prior death,
retirement, resignation, or removal, and (2) the newly created or
eliminated directorships resulting from such increase or decrease shall
be apportioned by the Board of Directors among the three classes of
directors so as to maintain such classes as nearly equal in number as
possible.
(e) Notwithstanding any of the foregoing provisions of this Article Fifth,
each director shall serve until his or her successor is elected and
qualified or until his or her death, retirement, resignation or removal.
Should a vacancy occur or be created, whether arising through death,
retirement, resignation or removal of a director or through an increase
in the number of directors of any class, such vacancy shall be filled by
a majority vote of the remaining directors of all classes then in office
although less than a quorum, or by the sole remaining director. A
director so elected to fill a vacancy shall serve for the remainder of
the then present term of office of the class in which the vacancy shall
have occurred or shall have been created.
(f) Notwithstanding any of the foregoing provisions of this Article Fifth,
whenever the holders of any outstanding class or series of Preferred
Stock shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of
such directorships shall be governed by the terms of this Restated
Certificate of Incorporation and of the resolution of the Board of
Directors providing for the issue of such class or series of Preferred
Stocked applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article Fifth, unless expressly
provided by such terms.
(g) The Board of Directors, by resolution adopted by the affirmative vote of
at least a majority of all members thereof, shall have concurrent power
with the stockholders to adopt, amend or repeal the By-laws of the
Corporation; provided, however, that the By-laws of the Corporation
shall not be adopted, amended or repealed by the stockholders except by
the affirmative vote of the holders of at least 67% of the voting power
of the then outstanding Voting Stock, voting together as a single class
[it being understood that, for purposes of this paragraph (h), each
share of the Voting Stock shall have the number of votes granted to it
pursuant to Article Fourth hereof], and such affirmative vote shall be
required notwithstanding the fact that a lesser percentage may be
specified by law or in any agreement with any national securities
exchange or otherwise.
(h) Wherever the term "Board of Directors" is used in this Restated
Certificate of Incorporation, such term shall mean the Board of
Directors of the Corporation; provided, however, that, to the extent any
committee of directors of the Corporation is lawfully entitled to
exercise the powers of the Board of Directors, such committee, to the
extent provided by resolution of the Board of Directors or the By-laws,
may exercise any power or authority of the Board of Directors under this
Restated Certificate of Incorporation in the management of the business
and affairs of the Corporation.
(i) The books of the Corporation (subject to the provisions of the laws of
the State of Delaware) may be kept outside of the State of Delaware at
such places as may be from time to time designated by the Board of
Directors. Elections of directors need not be by ballot unless the By-
laws so provide.
(j) No Director of the Corporation shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach
of fiduciary duty as a Director, except to the extent that such
exemption from liability or limitation thereof is not permitted under
the General Corporation Law of the State of Delaware, as it may be in
effect from time to time. No amendment to or repeal of this paragraph
(k) shall apply to or have any effect on the liability or alleged
liability of any Director of the Corporation for or with respect to any
acts or omissions of such Director occurring prior to such amendment or
repeal.
ARTICLE SIXTH. Indemnification.
Without limiting in any manner any power of the Corporation conferred by
statute, each person who is or was a director or officer of the Corporation
shall be indemnified by the Corporation to the full extent permitted by the
General Corporation Law of the State of Delaware, as it may be in effect from
time to time, against any liability, cost or expense incurred by him in his
capacity as a director or officer or arising out of his status as a director
or officer.
ARTICLE SEVENTH. Certain Business Combinations.
(a) Higher Vote for Certain Business Combinations.
In addition to any affirmative vote required by law or any other
provision of this Restated Certificate of Incorporation, and except as
otherwise expressly provided in paragraph (b) of this Article Seventh:
(1) Any merger or consolidation of the Corporation or any Subsidiary
with (A) any Interested Stockholder or (B) any other corporation
(whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate of an
Interested Stockholder; or
(2) Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value of $5 million or more; or
(3) The issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate Fair Market value of $5 million or more; or
(4) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(5) Any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any Affiliate
of any Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding Voting Stock, voting together as a
single class [it being understood that, for purposes of this paragraph
(a), each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article Fourth hereof]. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required,
or that a lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise. The term "Business
Combination", as used in this Article Seventh, means any transaction
which is referred to in any one or more of clauses (1) through (5) of
this paragraph (a).
(b) When Higher Vote is Not Required.
The provisions of paragraph (a) of this Article Seventh shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is
required by law or any other provision of this Restated Certificate of
Incorporation or the By-laws of the Corporation, if all the conditions
specified in either subparagraph (b) (1) or (2) below are met:
(1) Approval by Disinterested Directors.
Such Business Combination shall have been approved by a majority
of the Disinterested Directors.
(2) Price and Procedure Requirements.
All of the following conditions shall have been met:
(A) The aggregate amount of the cash and the Fair Market value
as of the date of the consummation of such Business
Combination of consideration other than cash to be received
per share by holders of Common Stock in such Business
Combination shall be at least equal to the highest of the
following:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder involved for any shares of Common Stock
acquired by it (I) within the two-year period ending
on the date of the first public announcement of the
proposal of such Business Combination (the
"Announcement Date") or (II) in the transaction in
which it became an Interested Stockholder, whichever
is higher;
(ii) (if applicable) an amount which bears the same or a
greater percentage relationship to the Fair Market
Value per share of Common Stock on the Announcement
Date or on the date on which the Interested
Stockholder involved became an Interested Stockholder
(such latter date is referred to in this Article
Seventh as the "Determination Date"), whichever is
higher, as the highest per share price determined
under subparagraph (b)(2)(A)(i) bears to the Fair
Market Value per share of Common Stock on the first
day within the two-year period ending on the
Announcement Date on which such Interested Stockholder
acquired beneficial ownership of any share of Common
Stock; and
(iii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date,
whichever is higher.
(B) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of such Business
Combination of consideration other than cash to be received
per share by holders of shares of any class of outstanding
Voting Stock, other than Common Stock, shall be at least
equal to the highest of the following [it being intended
that the requirements of this subparagraph (b)(2)(B) shall
be required to be met with respect to each class of
outstanding Voting Stock, other than Common Stock, whether
or not the Interested Stockholder involved has previously
acquired any shares of such class of Voting Stock]:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder involved for any share of such class of
Voting Stock acquired by it (I) with the two-year
period ending on the Announcement Date or (II) in the
transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of
Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(iii) (if applicable) an amount which bears the same or a
greater percentage relationship to the Fair Market
Value per share of such class of Voting Stock on the
Announcement Date or on the Determination Date,
whichever is higher, as the highest per share price
determined under subparagraph (b)(2)(B)(i) bears to
the Fair Market Value per share of such class of
Voting Stock on the first day within two year period
ending on the Announcement Date on which the
Interested Stockholder involved acquired beneficial
ownership of any share of such class of Voting Stock;
and
(iv) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(C) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as the Interested
Stockholder involved has previously paid for shares of such
class of Voting Stock. If such Interested Stockholder has
paid for shares of any class of Voting Stock with varying
forms of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of
Voting Stock previously acquired by it. The prices
determined in accordance with subparagraphs (b)(2)(A) and
(b)(2)(B) shall be subject to appropriate adjustment in the
event of any stock dividend, stock split, combination of
shares or similar event.
(D) After the Interested Stockholder involved has become an
Interested Stockholder and prior to the consummation of such
Business Combination: (i) there shall have been (I) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Disinterested Directors, and (II) an increase in such annual
rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction
which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the
Disinterested Directors; and (ii) such Interested
Stockholder shall not have become the beneficial owner of
any additional shares of Voting Stock except as part of the
transaction which results in such Interested Stockholder
becoming an Interested Stockholder.
(E) After the Interested Stockholder involved has become an
Interested Stockholder, such Interested Stockholder shall
not have received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection
with such Business Combination or otherwise.
(F) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of
the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
public stockholders of the Corporation at least 30 days
prior to the consummation of such Business Combination
(whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent
provisions).
(c) Certain Definitions.
For purposes of this Restated Certificate of Incorporation:
(1) The term "person" means any individual, firm, corporation or other
entity.
(2) The term "Interested Stockholder" means any person (other than the
Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with
respect to any such plan when acting in such capacity) who or
which:
(A) is the beneficial owner, directly or indirectly, of 5% or
more of the voting power of the outstanding Voting Stock; or
(B) is an Affiliate of the Corporation and at any time within
the two-year period ending on the date in question was the
beneficial owner, directly or indirectly, of 5% or more of
the voting power of the then outstanding Voting Stock; or
(C) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year
period ending on the date in question beneficially owned by
any Interested Stockholder, if such assignment or succession
shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the
meaning of the Securities Act of 1933, as amended.
(3) A person shall be a "beneficial owner" of any Voting Stock:
(A) which such person or any of his or its Affiliates or
Associates beneficially owns, directly or indirectly, or
(B) which such person or any of his or its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding; or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
(4) For purposes of determining whether a person is an Interested
Stockholder pursuant to subparagraph (c)(2), the number of shares
of Voting Stock deemed to be outstanding shall include shares deem
owned through application of subparagraph (c)(3) but shall not
include any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
The phrase "Interested Stockholder involved" means, in respect of
any Business Combination, the Interested Stockholder that, or
whose Affiliate, is a party to or otherwise involved (other than
merely as a stockholder of the Corporation) in such Business
Combination.
(5) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in
effect on March 1, 1985.
(6) The term "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by
the corporation; provided, however, that, for purposes of the
definition of Interested Stockholder set forth in subparagraph
(c)(2), the term "Subsidiary" shall mean only a corporation of
which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(7) The term "Disinterested Director" means, in respect of any
Business Combination, any member of the Board of Directors who is
unaffiliated with the Interested Stockholder involved in such
Business Combination and who was a member of the Board of
Directors prior to the time that such Interested Stockholder
became an Interested Stockholder, and any successor of a
Disinterested Director who is unaffiliated with such Interested
Stockholder and who is recommended to succeed a Disinterested
Director by a majority of Disinterested Directors then on the
Board of Directors.
(8) The term "Fair Market Value" means: (A) in the case of stock, the
highest closing sale price during the 30-day period ending on the
date in question of a share of such stock on the Composite Tape
for New York Stock Exchange-Listed Stocks, or, if such stock is
not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day
period ending on the date in question on the National Association
of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock
as determined by the Board of Directors in good faith; and (B) in
the case of property other than cash or stock, the fair market
value of such property on the date in question as determined by
the Board of Directors in good faith.
(9) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be
received", as used in subparagraphs (b)(2)(A) and (b)(2)(B), shall
include the shares of any Common Stock and the shares of any other
class of outstanding Voting Stock retained by the holders of such
shares.
(d) Certain Powers of the Board of Directors.
A majority of the Board of Directors shall have the power and duty to
determine, for purposes of this Article Seventh, on the basis of
information known to them after reasonable inquiry, (1) whether a person
is an Interested Stockholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate
or Associate of another, and (4) whether the assets which are the
subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation
or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $5 million or more. A majority of the Board of
Directors shall have the further power to interpret all of the terms and
provisions of this Article Seventh.
(e) No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article Seventh shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
ARTICLE EIGHTH. Considerations for Board of Directors in Evaluation of
Certain Acquisition Proposals.
In connection with the exercise of its judgment in determining what is in the
best interests of the Corporation and its stockholders when evaluating a
proposal by another person or persons to make a tender or exchange offer for
any equity security of the Corporation or any Subsidiary, to merge or
consolidate with the Corporation or any Subsidiary or to purchase or otherwise
acquire all or substantially all of the assets of the Corporation or any
Subsidiary, the Board of Directors of the Corporation shall, in addition to
considering the adequacy of the amount to be paid in connection with any such
transaction, consider all of the following factors and any other factors which
it deems relevant: (a) the social and economic effects of the transaction on
the Corporation and its Subsidiaries, the employees, depositors, loan and
other customers and creditors or the Corporation and its Subsidiaries and the
other elements of the communities in which the Corporation and its
Subsidiaries operate or are located; (b) the business and financial condition
and earnings prospects of the acquiring person or persons, including, but not
limited to, debt service and other existing or likely financial obligations of
the acquiring person or persons, and the possible effect of such conditions
upon the Corporation and its Subsidiaries and the other elements of the
communities in which the Corporation and its
Subsidiaries operate or are located; and (c) the competence, experience, and
integrity of the acquiring person or persons and its or their management.
ARTICLE NINTH. Perpetual Existence.
The Corporation shall have perpetual existence.
ARTICLE TENTH. Amendments and Repeal.
(a) Notwithstanding the fact that a lesser percentage vote for the amendment
or repeal of this Restated Certificate of Incorporation shall be
specified by law or in any agreement with any national securities
exchange or otherwise, and in addition to any affirmative vote required
by law or any other provision of this Restated Certificate of
Incorporation, the provisions of this Article Tenth and of Articles
Fourth through Ninth hereof may not be amended or repealed in any
respect, unless such action is approved by the affirmative vote of the
holders of at least 80% of the voting power of the then outstanding
Voting Stock, voting together as a single class [it being understood
that, for purposes of this paragraph (a), each share of the Voting Stock
shall have the number of votes granted to it pursuant to Article Fourth
hereof]; provided, however, that the foregoing provisions of this
paragraph (a) shall not be applicable to any particular proposal to
amend or repeal any provision of this Restated Certificate of
Incorporation, and such proposed amendment or repeal shall require only
such affirmative vote as is required by law or any other provision of
this Restated Certificate of Incorporation or the By-laws of the
Corporation, if such proposed amendment or repeal shall have been
approved by resolution of the Board of Directors adopted by the
affirmative vote of at least 80% of all members thereof.
(b) Subject to paragraph (a) of this Article Tenth, the Corporation reserves
the right to amend, alter, change or repeal any provision of this
Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by the laws of the State of Delaware, and all rights and
powers conferred herein upon stockholders and directors are granted
subject to this reservation. All references herein to "this Restated
Certificate of Incorporation" shall be deemed to encompass this Restated
Certificate of Incorporation, as the same shall be amended from time to
time.