Exhibit 3.1
COMPOSITE ARTICLES OF INCORPORATION, AS AMENDED
OF
BANDO McGLOCKLIN CAPITAL CORPORATION
ARTICLE I
NAME
The name of the corporation shall be BANDO McGLOCKLIN CAPITAL CORPORATION.
ARTICLE II
EXISTENCE
The period of existence of the corporation shall be perpetual.
ARTICLE III
PURPOSE
The purpose or purposes for which the corporation is organized
is to carry on and engage in any lawful activity within the purposes for
which corporations may be operated under the Wisconsin Business
Corporation Law.
ARTICLE IV
DIRECTORS
The number of initial directors shall be three (3). Thereafter,
the number of directors shall be as provided in the by-laws of the
corporation.
The name of the initial director is:
Salvatore Bando
Jon McGlocklin
Richard VanEerden
ARTICLE V
REGISTERED AGENT AND OFFICE
The name of the initial registered agent of the corporation and
the address of its initial registered office are:
Salvatore Bando
13325 Bishops Court, #225
Brookfield, Wisconsin 53005
ARTICLE VI
INCORPORATOR
The name and address of the incorporator is:
Patrick J. O'Neil
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
ARTICLE VII
AMENDMENT
These Articles may be amended in the manner authorized by law at
the time of amendment.
ARTICLE VIII
AUTHORIZED SHARES
The aggregate number of shares which the corporation shall have
authority to issue shall be eighteen million (18,000,000), consisting of:
(i) fifteen million (15,000,000) shares of a class designated as "Common
Stock," with a par value of 6-2/3 cents per share; and (ii) three million
(3,000,000) shares of a class designated as "Preferred Stock," with a par
value of $.01 per share.
The designation, relative rights, preferences and limitations of
each class and the authority of the Board of Directors of the corporation
to establish and to designate series of Preferred Stock and to fix
variations in the relative rights, preferences and limitations as between
such series, shall be as set forth herein.
A. Preferred Stock
(1) Series Variations Between Series. The Board of
Directors of the corporation is authorized to the full extent permitted
under the Wisconsin Business Corporation Law to provide for the issuance
of Preferred Stock in series, each of such series to be distinctively
designed, and to have such redemption rights, dividend rights, rights on
dissolution or distribution of assets, conversion or exchange rights,
voting powers, designations, preferences and relative participating,
optional or other special rights, if any, and such qualifications,
limitations or restrictions thereof as shall be provided by the Board of
Directors of the corporation consistent with the provisions of this
Article VIII.
(2) Dividends. Before any dividends shall be paid or set
apart for payment upon shares of Common Stock, the holders of each series
of Preferred Stock shall be entitled to receive dividends at the rate
(which may be fixed or variable) and at such times as specified in the
particular series. The holders of shares of Preferred Stock shall have no
rights to participate with the holders of shares of Common Stock in any
distribution of dividends in excess of the preferential dividends, if any,
fixed for such Preferred Stock.
(3) Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the corporation, the
holders of shares of each series of Preferred Stock shall be entitled to
receive out of the assets of the corporation in money or money's worth the
preferential amount, if any, specified in the particular series for each
share at the time outstanding together with all accrued but unpaid
dividends thereon, before any of such assets shall be paid or distributed
to the holders of shares of Common Stock. The holders of shares of
Preferred Stock shall have no rights to participate with the holders of
shares of Common Stock in the assets of the corporation available for
distribution to shareholders in excess of the preferential amount, if any,
fixed for such Preferred Stock.
(4) Voting Rights. The holders of Preferred Stock shall
have only such voting rights as are fixed for shares of each such series
by the Board of Directors pursuant to this paragraph A or are provided, to
the extent applicable, by the Wisconsin Business Corporation Law.
(5) Series A Preferred Stock.
(a) Designation. The corporation is authorized to
issue a series of Preferred Stock which is hereby designated Adjustable
Rate Cumulative Preferred Stock, Series A (the "Series A Preferred
Stock"). The number of Series A Preferred Stock shall be limited to
690,000. The stated value and liquidation preference (the "Liquidation
Preference") of the Series A Preferred Stock shall be $25.00 per share.
(b) Dividends.
1. With respect to each dividend period,
holders of Series A Preferred Stock shall be entitled to receive
when, as and if declared by the corporation's Board of Directors, out
of funds legally available therefor, cumulative dividends payable on
shares of Series A Preferred Stock at the Applicable Rate (as defined
in paragraph (b)2. below) in respect of the Liquidation Preference.
All dividends described in this paragraph (b)1. shall be payable
quarterly in cash on the January 1, April 1, July 1 and October 1 of
each year (each of such dates being a "Dividend Payment Date"),
commencing January 1, 1994, except that if the day that otherwise
would be the Dividend Payment Date is not a Business Day (as defined
below), then the Dividend Payment Date shall be the next succeeding
Business Day, Such dividends shall be paid to the holders of record
at the close of business on the December 15, March 15, June 15 and
September 15 next preceding the applicable Dividend Payment Date.
Each of such quarterly dividends shall be fully cumulative and shall
accrue (whether or not declared), without interest, from the first
day of each quarterly dividend period (hereinafter referred to as a
"Quarterly Dividend Period"), except that with respect to the initial
Quarterly Dividend Period (the "Initial Quarterly Dividend Period"),
such dividend shall accrue from the date of the original issuance of
the shares of Series A Preferred Stock. The amount of dividends
payable on shares of Series A Preferred Stock for each full Quarterly
Dividend Period shall be computed by dividing by four (and rounding
to the nearest penny) the product of the Applicable Rate (as defined
in paragraph (b)2. below) for such Quarterly Dividend Period and the
Liquidation Preference. Dividends payable on the Series A Preferred
Stock for the Initial Quarterly Dividend Period and any period less
than a full quarterly period shall be computed on the basis of a 360-
day year of twelve 30-day months and the actual number of days
elapsed in the period for which the dividend is payable. As used
herein, "Business Day" means a day which is not a Saturday, Sunday or
other day on which national banks chartered under the laws of the
United States are authorized or obligated by law to close. Dividends
in arrears for any past Quarterly Dividend Period may be declared and
paid at any time, without reference to the regular Dividend Payment
Date, to the holders of record at the close of business on a date,
not exceeding 15 days prior to the payment date therefor, as may be
fixed by the Board of Directors of the corporation. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment on the Series A Preferred Stock that may be in
arrears.
2. The "Applicable Rate" for any Quarterly
Dividend Period, which Quarterly Dividend Periods shall commence on
the January 1, April 1, July 1 and October 1 of each year (except for
the Initial Quarterly Dividend Period which shall commence on the
date that shares of Series A Preferred Stock are first issued and
shall end on and include December 31, 1993), shall be determined as
follows: (A) for the Initial Quarterly Dividend Period and for each
Quarterly Dividend Period thereafter, through the Quarterly Dividend
Period ending June 30, 1998, the Applicable Rate per annum shall be
equal to 7 5/8%; (B) for the Quarterly Dividend Periods commencing on
July 1, 1998 and ending on June 30, 2003, the Applicable Rate per
annum shall be equal to the Five Year Treasury Rate (as defined
herein) as of June 1, 1998 plus 300 basis points; and (C) for the
Quarterly Dividend Periods commencing on July 1, 2003 and ending June
30, 2008, the Applicable Rate per annum shall be equal to the Five
Year Treasury Rate as of June 1, 2003 plus 300 basis points. In the
event that June 1, 1998 or June 1, 2003 is not a Business Day, then
the Five Year Treasury Rate shall be determined as of the next
succeeding Business Day. For purposes of determining the Applicable
Rate, the "Five Year Treasury Rate" shall mean: the Treasury
constant maturity rate as of the applicable date on five-year U.S.
government securities as published by the Federal Reserve Board. If
the Federal Reserve Board does not publish such a rate for the
applicable date, then the Five Year Treasury Rate shall mean the
Treasury constant maturity rate as of the applicable date on five-
year U.S. government securities as published by any Federal Reserve
Bank or by any U.S. government department or agency selected by the
corporation. If the corporation determines in good faith that such
rate is not published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. government department or agency, the Five
Year Treasury Rate shall mean the arithmetic average (rounded as a
percentage to two decimal points) of the per annum average yields to
maturity based upon the closing bids on the applicable date for each
of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities with a final maturity date not less than
three years nor more than seven years from the date of each quotation
as quoted by each of three U.S. government securities dealers of
recognized national standing selected by the corporation.
3. The mathematical accuracy of each
calculation of the Applicable Rate, as adjusted, shall be confirmed
in writing by the corporation's independent public accountants. The
corporation will cause notice of the Applicable Rate, as adjusted, to
be mailed to the holders of shares of the Series A Preferred Stock as
soon as is practicable following the confirmation of such adjustment.
4. In the event that the amount legally
available for the payment of dividends by the corporation shall be
insufficient for the payment of the entire amount of dividends
payable in any Quarterly Dividend Period with respect to the Series A
Preferred Stock, the amount legally available therefor (after taking
into account dividends payable on any other series of Preferred Stock
of the corporation which may then be outstanding) shall be allocated
for the payment of dividends with respect to Series A Preferred Stock
pro rata based upon the Liquidation Preference of the outstanding
shares.
5. a. Holders of shares of Series A Preferred
Stock shall be entitled to receive the dividends provided for in
paragraph (b)1. hereof in preference to and in priority over any
dividends upon any shares of Common Stock. Holders of shares of
Series A Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full
cumulative dividends, as provided herein, on the Series A Preferred
Stock.
b. No fractional shares of Series A
Preferred Stock shall be issued.
(c) Liquidation Preference.
1. In the event of any voluntary liquidation,
dissolution or winding up on the affairs of the corporation, the
holders of shares of Series A Preferred Stock then outstanding shall
be entitled to be paid out of the assets of the corporation available
for distribution to its shareholders an amount in cash equal to the
Liquidation Preference, plus an amount in cash equal to all accrued
but unpaid dividends thereon to the date fixed for liquidation,
dissolution or winding up before any payment shall be made or any
assets distributed to the holders of any shares of Common Stock.
After such payment, the holders of Series A Preferred Stock will be
entitled to no other payments in respect of their shares of Series A
Preferred Stock. If the assets of the corporation are not sufficient
to pay in full the liquidation payments payable to the holders of
outstanding shares of Series A Preferred Stock, then the holders of
all such shares (along with the holders of any other series of
Preferred Stock of the corporation that may then be outstanding and
entitled to a preferential amount upon liquidation) shall share
ratably in such distribution of assets in proportion to the amount
which would be payable on such distribution if the amounts to which
the holders of outstanding shares of Series A Preferred Stock are
entitled were paid in full.
2. For the purposes of this paragraph (c), a
consolidation or merger of the corporation with or into any other
corporation or corporations or a sale, lease or conveyance, whether
for cash, shares of stock, securities or properties, of all or
substantially all or any part of the assets of the corporation shall
not be deemed or construed to be a liquidation or winding up of the
corporation.
(d) Redemption.
1. Mandatory Redemption. On July 1, 2008, to
the extent the corporation shall have legally available funds
therefor and to the extent otherwise permitted under the Wisconsin
Business Corporation Law, the corporation shall redeem the remaining
outstanding shares of Series A Preferred Stock, at a redemption price
of $25.00 per share, together with accrued and unpaid dividends
thereon to June 30, 2008, in cash without interest. If, for any
reason, the corporation shall fail to discharge its mandatory
redemption obligation pursuant to this paragraph (d)1., such
mandatory redemption obligation shall be discharged as soon as
corporation is able to discharge such obligation. Dividends shall
continue to accrue and be payable at the Applicable Rate in effect on
June 30, 2008 on any mandatory redemption obligation that has not
been discharged by the corporation pursuant to this paragraph (d)1.
2. Optional Redemption. The Series A Preferred
Stock is not redeemable on or before June 30, 2001. Thereafter, to
the extent permitted under the Wisconsin Business Corporation Law,
the Series A Preferred Stock is redeemable at the option of the
corporation on any Dividend Payment Date with respect to the optional
redemption periods set forth below, in whole or in part, at a
redemption price of $25.00 per share, together with accrued and
unpaid dividends thereon to the date fixed for redemption:
Optional Redemption Periods
July 1, 2001 - June 30, 2003
July 1, 2006 - June 30, 2008
The redemption price, including any accrued and unpaid dividends, shall be
payable in cash without interest out of legally available funds therefor.
3. Procedures for Redemption. The following
procedures shall govern the mandatory and optional redemption of
shares of Series A Preferred Stock:
a. Notice of a mandatory or optional
redemption of shares of Series A Preferred Stock shall be given by
first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed at such holder's address as the
same appears on the stock register of the corporation; provided
however, that no failure to give such notice nor any defect therein
shall affect the validity of the proceeding for the redemption of any
shares of Series A Preferred Stock to be redeemed, except as to the
holder to whom the corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice
shall state: (i) the redemption date, (ii) with respect to an
optional redemption, the total number of shares of Series A Preferred
Stock to be redeemed and the number of shares of Series A Preferred
Stock to be redeemed from such holder; (iii) the redemption price;
(iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue upon such
redemption. With respect to any redemption of fewer than all the
outstanding shares of Series A Preferred Stock in connection with an
optional redemption, the number of shares to be redeemed shall be
determined by the Board of Directors of the corporation and the
shares to be redeemed shall be selected either by lot, on a pro rata
basis or by such other method as the Board of Directors of the
corporation shall deem fair and equitable.
b. Notice having been mailed as aforesaid,
from and after the redemption date (unless default shall be made by
the corporation in providing money for the payment of the redemption
price of the shares called for redemption) dividends on the shares of
Series A Preferred Stock so called for redemption shall cease to
accrue, and said shares shall no longer be deemed outstanding and
shall have the status of authorized but unissued shares of Series A
Preferred Stock and all right of the holders thereof as shareholders
of the corporation (except the right to receive from the corporation
the redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the
corporation shall so require and the notice shall so state), such
shares shall be redeemed by the corporation at the redemption price
as aforesaid. If fewer than all the shares represented by any such
certificate are redeemed in connection with an optional redemption, a
new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(e) Voting Rights.
1. General. Except as otherwise provided by
law or by the Articles of Incorporation of the corporation, each
holder of Series A Preferred Stock shall be entitled to one vote for
each share held on each matter submitted to a vote of shareholders of
the corporation, and the holders of outstanding shares of Series A
Preferred Stock shall vote together with the holders of outstanding
shares of capital stock of the corporation as a single class.
Notwithstanding the preceding sentence, at the first annual meeting
of shareholders of the corporation following the issuance of the
Series A Preferred Stock and for so long as any shares of Series A
Preferred Stock remain outstanding, the holders of outstanding shares
of Preferred Stock, including shares of Series A Preferred Stock,
represented in person or by proxy, shall be entitled as a class, and
to the exclusion of the holders of all other securities and classes
of capital stock of the corporation, to elect two directors and shall
thereafter be so entitled to elect any successors from time to time
to the two directors so elected at any meeting of shareholders at
which successors to such directors are elected. Subject to this
paragraph (e)1., the holders of outstanding shares of capital stock
of the corporation (including holders of outstanding shares of
Preferred Stock), voting as a single class, shall elect the balance
of the directors. At any time that the right of the holders of
Preferred Stock (including the Series A Preferred Stock) to elect two
directors as provided in paragraph (e)1. shall cease (including any
time that there are no longer any shares of Preferred Stock
outstanding), the terms of said two directors then in office will
expire and terminate.
2. Right to Elect Majority of Board of
Directors. During any period in which the condition described below
shall exist (such period being referred to herein as a "Voting
Period"), the number of directors constituting the Board of Directors
of the corporation shall be automatically increased by the smallest
number that, when added to the two directors elected exclusively by
the holders of shares of Preferred Stock (including shares of Series
A Preferred Stock), would constitute a majority of the Board of
Directors as so increased by such smallest number; and the holders of
shares of Preferred Stock (including shares of Series A Preferred
Stock) shall be entitled, voting as a class (to the exclusion of the
holders of all other classes of capital stock of the corporation), to
elect such smallest number of additional directors, together with the
two directors that such holders are in any event entitled to elect.
A Voting Period shall commence if at any time accumulated dividends
(whether or not earned or declared, and whether or not funds are then
legally available in an amount sufficient therefor) on any
outstanding shares of Preferred Stock, including shares of Series A
Preferred Stock, equal to at least two full years' dividends shall be
due and unpaid and sufficient cash or specified securities shall not
have been deposited with the dividend disbursement agent for the
payment of such accumulated dividends. Upon the termination of a
Voting Period, the voting rights described in this paragraph (e)2.
shall cease, subject always, however, to the revesting of such voting
rights in the holders of shares of Preferred Stock (including shares
of Series A Preferred Stock) upon the further occurrence of any of
the events described in this paragraph (e)2. Upon cessation of the
Voting Period, the terms of the additional directors then in office
and elected by the holders of shares of Preferred Stock (including
shares of Series A Preferred Stock) as a result of such Voting Period
(exclusive of the two directors elected pursuant to paragraph (e)1.
hereof) will expire and terminate. Thereafter, the remaining
directors shall constitute the directors of the corporation.
(f) Except as expressly set forth herein, the holders
of the Series A Preferred Stock shall have no other rights other than
those provided by law.
B. Common Stock
(1) Dividends. Subject to the provision of this Article
VIII, the Board of Directors of the corporation may, in its sole
discretion, out of funds legally available for the payment of dividends
and at such times and in such manner as determined by the Board of
Directors, declare and pay dividends on the Common Stock.
(2) Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the corporation,
after there shall have been paid to or set aside for the holders of shares
of Preferred Stock the full preferential amounts, if any, to which they
are entitled, the holders of outstanding shares of Common Stock shall be
entitled to receive pro rata, according to the number of shares held by
each, the remaining assets of other corporation available for
distribution.
(3) Voting Rights. Except as otherwise provided by the
Wisconsin Business Corporation Law and except as may be determined by the
Board of Directors with respect to the Preferred Stock pursuant to
paragraph A of this Article VIII, only the holders of Common Stock shall
be entitled to vote for the election of directors of the corporation and
for all other corporate purposes. Upon any such vote the holders of
Common Stock shall, except as otherwise provided by law, be entitled to
one vote for each share of Common Stock held by them respectively.
ARTICLE IX
ACQUISITION OF SHARES
Subject to applicable limitations under the Wisconsin Business
Corporation Law, the corporation may, upon authorization of the Board of
Directors, purchase or otherwise acquire outstanding shares of its capital
stock.
ARTICLE X
STOCK RIGHTS
No holder of any capital stock of this corporation shall have
any preemptive or other subscription or conversion rights of any kind,
nature or description whatsoever to any part of the unissued stock of this
corporation or any additional stock which may be issued by reason of any
increase of the authorized capital stock of this corporation.