1
EXHIBIT 3.5
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
ST. FRANCIS CAPITAL CORP.
St. Francis Capital Corporation, 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 120,000 shares designated as Series
A Junior Participating Preferred Stock, $.01 par value per share, pursuant to
Section 180.0602 of the Wisconsin Business Corporation Law ("WBCL") and the
authority conferred upon the Board by the Articles of Incorporation; and to
effectuate the foregoing, further approved the amendment of Subsection B of
Article IV of the existing Articles of Incorporation, 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 $.01 per share (the "Series A
Preferred Stock"), and the authorized number of shares constituting the
Series A Preferred Stock shall be 120,000. 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.
1
2
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 September 25, 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
2
3
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.
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
3
4
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 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,
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) $1.00, 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
4
5
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 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
5
6
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.
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, of the Corporation was
adopted by the Board of Directors of the Corporation at a meeting of the Board
of Directors held on September 25, 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 25th day of September, 1997.
By: /s/ Thomas R. Perz
-----------------------------------
Thomas R. Perz
President/Chief Executive Officer
This document was drafted by and is returnable to:
JAMES P. PETERSON, ESQ.
MICHAEL BEST & FRIEDRICH LLP
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WI 53202
(414) 271-6560
6