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EXHIBIT 3.(i)
ARTICLES OF AMENDMENT AND RESTATEMENT
TO THE
ARTICLES OF INCORPORATION
OF
ALLIED CAPITAL CREDIT CORPORATION
Pursuant to the provisions of the Annotated Code of Maryland,
Corporations and Associations (the "Act"), the undersigned corporation adopts
the following Articles of Amendment and Restatement to its Articles of
Incorporation:
1. The name of the Corporation is Allied Capital Credit
Corporation, a Maryland corporation.
2. The following amendment and restatement to the Articles of
Incorporation was approved by the unanimous written consent of
the entire Board of Directors of Allied Capital Credit
Corporation on September 13, 1996, and no stock entitled to be
voted on the matter was outstanding or subscribed for at the
time of approval.
3. The Articles of Incorporation are hereby amended and restated
as set forth in Exhibit A hereto.
Date: September 13, 1996
[CORPORATE SEAL] ALLIED CAPITAL CREDIT CORPORATION
Attest: /s/ Tricia B. Daniels By: /s/ Katherine C. Marien
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Tricia Benz Daniels Katherine C. Marien
Secretary President & Chief Operating Officer
THE UNDESIGNED, G. Cabell Williams, III of Allied Capital
Credit Corporation, a Maryland corporation, who executed on behalf of said
corporation the foregoing Amendment to the Articles of Incorporation of which
this certificate is made part, hereby acknowledges, in the name and on behalf
of said corporation, the foregoing Amendment to the Articles of Incorporation
to be the corporate act of said corporation and further certifies that, to the
best of his knowledge, information and belief, the matters and facts set forth
therein with respect to the approval thereof are true in all material respects,
under the penalties of perjury.
/s/ G. Cabell Williams, III
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G. Cabell Williams, III, Executive Vice President
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EXHIBIT A
ARTICLES OF AMENDMENT AND RESTATEMENT
TO THE
ARTICLES OF INCORPORATION
OF
ALLIED CAPITAL CREDIT CORPORATION
(a Maryland corporation)
I. NAME: The name of the corporation (hereinafter referred to as the
"Corporation") is: Allied Capital Credit Corporation.
II. PURPOSES: The purposes for which the Corporation is organized are as
follows:
A. To purchase, acquire, hold, own, improve, develop, sell,
convey, assign, release, mortgage, encumber, use, lease, hire,
manage, deal in and otherwise dispose of real property and
personal property of every name and nature or any interest
therein, improved or otherwise, including stocks and
securities of other corporations; to loan money; to take
securities for the payment of all sums due the Corporation; to
sell, assign and release such securities;
B. To engage in, operate and acquire interests in any kind of
business, of whatever nature, which may be permitted by law;
C. To do any act or thing and exercise any power suitable,
convenient or proper for the accomplishment of any of the
purposes set forth herein or incidental to such purposes, or
which at any time may appear conducive to or expedient for the
accomplishment of any of such purposes; and
D. To have and exercise any and all powers and privileges now or
hereafter conferred by the general laws of the State of
Maryland upon corporations formed under such laws.
The foregoing enumeration of the purposes of the Corporation is made
in furtherance and not in limitation of the powers conferred upon the
Corporation by law. The mention of any particular purpose is not intended in
any manner to limit or restrict the generality of any other purpose mentioned,
or to limit or restrict any of the powers of the Corporation. The Corporation
shall have, enjoy and exercise all of the powers and rights now or hereafter
conferred by the laws of the State of Maryland upon corporations of a similar
character, it being the intention that the purposes set forth in each of the
paragraphs of this Article shall, except as otherwise expressly provided, in
nowise be limited or restricted by reference to or inference from the terms of
any other clause or paragraph of this or any other Article of these Articles of
Incorporation, or of any
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amendment thereto, and shall each be regarded as independent, and construed as
powers as well as purposes; provided, however, that nothing herein contained
shall be deemed to authorize or permit the Corporation to carry on any business
or exercise any power, or do any act which a corporation formed under the
general laws of the State of Maryland may not at the time lawfully carry on or
do.
III. PRINCIPAL OFFICE; RESIDENT AGENT: The principal office of the
Corporation in the State of Maryland shall be identical to that of the resident
agent. The name and address of the resident agent of the Corporation in the
State of Maryland are: The Prentice-Hall Corporation System, 11 East Chase
Street, Baltimore, Maryland 21202.
IV. CAPITALIZATION:
A. The total number of shares of stock of all classes which the
Corporation has authority to issue is ten million (10,000,000)
shares of capital stock, with a par value of One-Tenth of One
Mil ($0.0001) per share, amounting in aggregate par value to
One Thousand Dollars ($1,000). All of such shares are
initially classified as "Common Stock." The Board of
Directors may classify and reclassify any unissued shares of
capital stock by setting or changing in any one or more
respects the preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends,
qualification, terms or conditions of redemption or other
rights of such shares of stock.
B. The following is a description of the preferences, conversion
or other rights, voting powers, restrictions, limitations as
to dividends, qualifications, and terms and conditions of
redemption of the Common Stock of the Corporation:
(1) Each share of Common Stock shall have one vote, and,
except as otherwise provided in respect of any class
of stock hereafter classified or reclassified, the
exclusive voting power for all purposes shall be
vested in the holders of the Common Stock;
(2) Subject to the provisions of law and any preferences
of any class of stock hereafter classified or
reclassified, dividends, including dividends payable
in shares of another class of the Corporation's
stock, may be paid on the Common Stock of the
Corporation at such time and in such amounts as the
Board of Directors may deem advisable; and
(3) In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or
involuntary, the holders of the Common Stock shall be
entitled, after payment or provision for payment of
the debts and other liabilities of the Corporation
and the amount to which the holders of any class of
stock hereafter classified or reclassified having a
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preference on distributions in the liquidation,
dissolution or winding up of the Corporation shall be
entitled, together with the holders of any other
class of stock hereafter classified or reclassified
not having a preference on distributions in the
liquidation, dissolution or winding up of the
Corporation, to share ratably in the remaining net
assets of the Corporation.
C. Subject to the foregoing, the power of the Board of Directors
to classify and reclassify any of the shares of capital stock
shall include, without limitation, subject to the provisions
of these Articles of Incorporation, as they may subsequently
be amended, authority to classify or reclassify any unissued
shares of such stock into a class or classes of preferred
stock, preference stock, special stock or other stock, and to
divide and classify shares of any class into one or more
series of such class, by determining, fixing, or altering one
or more of the following:
(1) The distinctive designation of such class or series
and the number of shares to constitute such class or
series; provided that, unless otherwise prohibited by
the terms of such or any other class or series, the
number of shares of any class or series may be
decreased by the Board of Directors in connection
with any classification or reclassification of
unissued shares and the number of shares of such
class or series may be increased by the Board of
Directors in connection with any such classification
or reclassification, and any shares of any class or
series which have been redeemed, purchased, otherwise
acquired or converted into shares of Common Stock or
any other class or series shall become part of the
authorized capital stock and be subject to
classification and reclassification as provided in
this sub-paragraph;
(2) Whether or not and, if so, the rates, amount and
times at which, and the conditions under which,
dividends shall be payable on shares of such class or
series, whether any such dividends shall rank senior
or junior to or on a parity with the dividends
payable on any other class or series of stock, and
the status of any such dividends as cumulative,
cumulative to a limited extent, or non-cumulative and
as participating or non-participating;
(3) Whether or not shares of such class or series shall
have voting rights, in addition to any voting rights
provided by law and, if so, the terms of such voting
rights;
(4) Whether or not shares of such class or series shall
have conversion or exchange privileges and, if so,
the terms and conditions thereof, including provision
for adjustment of the conversion or exchange rate in
such events
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or at such times as the Board of Directors shall
determine;
(5) Whether or not shares of such class or series shall
be subject to redemption and, if so, the terms and
conditions of such redemption, including the date or
dates upon or after which they shall be redeemable
and the amount per share payable in case of
redemption, which amount may vary under different
conditions and at different redemption dates; and
whether or not there shall be any sinking fund or
purchase account in respect thereof, and if so, the
terms thereof;
(6) The rights of the holders of shares of such class or
series upon the liquidation, dissolution or winding
up of the affairs of, or upon any distribution of
assets of, the Corporation, which rights may vary
depending upon whether such liquidation, dissolution
or winding up is voluntary or involuntary and, if
voluntary, may vary at different dates, and whether
such rights shall rank senior or junior to or on a
parity with such rights of any other class or series
of stock;
(7) Whether or not there shall be any limitations
applicable, while shares of such class or series are
outstanding, upon the payment of dividends or making
of distributions on, or the acquisition of, or the
use of moneys for purchase or redemption of, any
stock of the Corporation, or upon any other action of
the Corporation, including action under this
sub-paragraph, and, if so, the terms and conditions
thereof; and
(8) Any other preferences, rights, restrictions,
including restrictions on transferability, and
qualifications of shares of such class or series, not
inconsistent with law and the Articles of
Incorporation, as they may subsequently be amended.
D. For the purposes hereof and of any Articles Supplementary to
these Articles of Incorporation providing for the
classification or reclassification of any shares of capital
stock or of any other charter document of the Corporation
(unless otherwise provided in any such articles or documents),
any class or series of stock of the Corporation shall be
deemed to rank:
(1) prior to another class or series either as to
dividends or upon liquidation, if the holders of such
class or series shall be entitled to the receipt of
dividends or of amounts distributable on liquidation,
dissolution or winding up, as the case may be, in
preference or priority to holders of such other class
or series;
(2) on a parity with another class or series either as to
dividends or upon
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liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation
price per share thereof be different from those of
such others, if the holders of such class or series
of stock shall be entitled to receipt of dividends or
amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in proportion to
their respective dividend rates or redemption or
liquidation prices, without preference or priority
over the holders of such other class or series; and
(3) junior to another class or series either as to
dividends or upon liquidation, if the rights of the
holders of such class or series shall be subject or
subordinate to the rights of the holders of such
other class or series in respect of the receipt of
dividends or the amounts distributable upon
liquidation, dissolution or winding up, as the case
may be.
V. DIRECTORS: The number of directors of the Corporation shall be nine
(9) in accordance with the provisions of the General Corporation Law of the
State of Maryland, which number may be changed pursuant to the provisions set
forth in the Bylaws of the Corporation, but shall never be less than the number
permitted by law. The names of those directors who shall act until the next
annual meeting of stockholders of the Corporation or until their successors are
duly chosen and qualify are: David Gladstone, George C. Williams, Katherine C.
Marien, Jon W. Barker, Eleanor Deane Bierbower, Robert V. Fleming II, Anthony
T. Garcia, Robin B. Martin, and Arthur H. Keeney.
VI. SPECIAL POWERS AND LIMITATIONS: The following provisions are hereby
adopted for the purpose of defining, limiting and regulating the powers of the
Corporation and of the Board of Directors and stockholders:
A. The Board of Directors of the Corporation is hereby empowered
to authorize and direct the issuance from time to time or at
any time or times of the shares of stock of the Corporation of
any class, now or hereafter authorized, any options or
warrants for such shares permitted by law, any rights to
subscribe to or purchase such shares and any other securities
of the Corporation, for such consideration as the Board of
Directors may deem advisable, subject to such limitations and
restrictions, if any, as may be set forth in the Bylaws of the
Corporation.
B. Unless specifically provided elsewhere herein or in any
Articles Supplementary, no holder of shares of stock of the
Corporation of any class, now or hereafter authorized, shall
have any preferential or preemptive right to subscribe for,
purchase or receive (i) any shares of stock of the Corporation
of any class, now or hereafter authorized, (ii) any options or
warrants for such shares permitted by law, (iii) any rights to
subscribe to or purchase such shares, or (iv) any other
securities of the Corporation which may at any time or from
time to time be issued, sold or
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offered for sale by the Corporation.
C. The Board of Directors of the Corporation is hereby empowered
to adopt Bylaw provisions with respect to the indemnification
of officers, employees, agents and other persons and to make
such other indemnification as they shall deem expedient and in
the best interests of the Corporation, as such provisions are
consistent with Section C of Article VII and to the extent
permitted by law.
D. The provisions relating to certain special voting requirements
set forth in Title 3, Subtitle 6 of the General Corporation
Law of the State of Maryland and the provisions relating to
certain control shares set forth in Title 3, Subtitle 7 of the
General Corporation Law of the State of Maryland shall not be
applicable, pursuant to Sections 3-603(e)(iii) and 3-702(b)
thereof, respectively, to the shares of the Corporation which
are owned by, or which shall in the future be issued to and
owned by, any employee stock ownership plan, incentive stock
ownership plan or other similar plan established now or in the
future for the benefit of the Corporation's directors,
officers, employees or affiliates, and, without limiting the
foregoing, none of such shares owned by any such plan shall,
for purposes of such subtitles, be aggregated with any shares
owned individually by any beneficiaries of any such plan.
E. The Board of Directors of the Corporation is hereby authorized
to make, amend, alter, repeal or rescind the Bylaws of the
Corporation.
F. The Corporation reserves the right to amend these Articles of
Incorporation in any way which alters the contract rights, as
expressly set forth in these Articles of Incorporation, of any
outstanding stock of the Corporation and substantially
adversely affects any of the rights of any of the holders of
any outstanding stock of the Corporation.
VII. INDEMNIFICATION:
A. Subject to Section C below, the Corporation shall indemnify
(i) its directors and officers, whether serving the
Corporation or at its request any other entity, to the full
extent permitted by the General Laws of the State of Maryland
now or hereafter in force, including the advance of expenses
under the procedures and to the full extent permitted by law
and (ii) other employees and agents to such extent as shall be
authorized by the Board of Directors or the Corporation's
Bylaws and be permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to
which those seeking indemnification may be entitled. The
Board of Directors may take such action as is necessary to
carry out these indemnification provisions and is expressly
empowered to adopt, approve and amend from time to time such
Bylaws, resolutions or contracts implementing
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such provisions or such further indemnification arrangements
as are consistent with Section C below and as may be permitted
by law. No amendment to or repeal of this Article VII shall
limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to
such amendment or repeal.
B. Subject to Section C below, to the fullest extent permitted by
Maryland statutory or decisional law, as amended or
interpreted, no director or officer of this Corporation shall
be personally liable to the Corporation or its stockholders
for money damages. No amendment to or repeal of this Article
VII shall limit or eliminate the benefits provided to
directors and officers under this provision with respect to
any act or omission which occurred prior to such amendment or
repeal.
C. Notwithstanding the foregoing Sections A and B of this Article
VII, the following limitations shall apply:
(a) In this Section the following words have the meaning indicated.
(a)(1) "Director" means any person who is or was a director of the
Corporation and any person who, while a director of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
other enterprise or employee benefit plan.
(a)(2) "Corporation" includes any predecessor entity of the
Corporation in a merger, consolidation or other transaction in which the
predecessor's existence ceased upon the consummation of the transaction.
(a)(3) "Expenses" include attorneys' fees.
(a)(4) "Official capacity" means the following:
(i) When used with respect to a director, the office of
director in the Corporation; and
(ii) When used with respect to a person other than a director
as contemplated in subsection (j), the elective or appointive office in the
Corporation held by the officer, or the employment or agency relationship
undertaken by the employee or agent in behalf of the Corporation.
(iii) "Official capacity" does not include service, for any
other corporation or any partnership, joint venture, trust, other enterprise or
employee benefit plan.
(a)(5) "Party" includes a person who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(a)(6) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative.
(b) Subject to the limitations set forth in subsection (c) of this
section, (1) the Corporation shall indemnify any director made a party to any
proceeding by reason of service in that capacity unless it is established that:
(i) The act or omission of the director was material to the
matter giving rise to the
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proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and deliberate
dishonesty; or
(ii) The director actually received an improper personal
benefit in money, property or services; or
(iii) In the case of any criminal proceeding, the director
had reasonable cause to believe that the act or omission was unlawful.
(b)(2)(i) Indemnification shall be against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by the director in
connection with the proceeding.
(ii) However, if the proceeding was one by or in the right of
the Corporation, indemnification may not be made in respect of any proceeding
in which the director shall have been adjudged to be liable to the Corporation.
(b)(3)(i) The termination of any proceeding by judgment, order or
settlement does not create a presumption that the director did not meet the
requisite standard of conduct set forth in this subsection.
(ii) The termination of any proceeding by conviction, or a
plea of nolo contendere or its equivalent, or an entry of an order of probation
prior to judgment, creates a rebuttable presumption that the director did not
meet that standard of conduct.
(c) A director may not be indemnified under subsection (b) of this
section in respect of any proceeding charging improper personal benefit to the
director, whether or not involving action in the director's official capacity,
in which the director was adjudged to be liable on the basis of an act or
omission (i) which such director did not reasonably believe to be in, or not
opposed to, the best interests of the Corporation, or that (ii) for which a
personal benefit was improperly received.
(d)(1) A director who has been successful, on the merits, in the
defense of any proceeding referred to in subsection (b) of this section (but
subject to the limitations of subsection (c) of this section) shall be
indemnified against reasonable expenses incurred by the director in connection
with the proceeding.
(d)(2) A court of appropriate jurisdiction, upon application of a
director and such notice as the court shall require, may order indemnification
in the following circumstances:
(i) If it determines a director is entitled to reimbursement
under paragraph (1) of this subsection, the court shall order indemnification,
in which case the director shall be entitled to recover the expenses of
securing such reimbursement; or
(ii) If it determines that the director is vindicated or
otherwise fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the director has met the standards of
conduct set forth in subsection (b) of this section or has been adjudged liable
under the circumstance described in subsection (c) of this section, the court
may order such indemnification as the court shall deem proper. However,
indemnification with respect to any proceeding by or in the right of the
Corporation or in which liability shall have been adjudged in the circumstances
described in subsection (c) shall be limited to expenses.
(d)(3) A court of appropriate jurisdiction may be the same court in
which the proceeding
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involving the director's liability took place.
(e)(1) Indemnification under subsection (b) of this section may not
be made by the Corporation unless authorized for a specific proceeding after a
determination has been made that indemnification of the director is permissible
in the circumstances because the director has met the standard of conduct set
forth in subsections (b) and (c) of this section.
(e)(2) Such determination shall be made:
(i) By the Board of Directors by a majority vote of a quorum
consisting of directors not parties to the proceeding, or, if such a quorum
cannot be obtained, then by a majority vote of a committee of the board
consisting solely of two or more directors not parties to such proceeding and
who were duly designated to act in the matter by a majority vote of the full
board in which the designated directors who are parties may participate; or
(ii) By special legal counsel selected by the Board of
Directors or a committee of the board by vote as set forth in subparagraph (i)
of this paragraph, or, if the requisite quorum of the full board cannot be
obtained therefor and the committee cannot be established, by a majority vote
of the full board in which directors who are parties may participate; or
(iii) By the stockholders.
(e)(3) Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible. However, if the
determination that indemnification is permissible is made by special legal
counsel, authorization of indemnification and determination as to
reasonableness of expenses shall be made in the manner specified in
subparagraph (ii) of paragraph (2) of this subsection for selection of such
counsel.
(e)(4) Shares held by directors who are parties to the proceeding may
not be voted on the subject matter under this subsection.
(f)(1) Reasonable expenses incurred by a director who is a party to a
proceeding may be paid or reimbursed by the Corporation in advance of the final
disposition of the proceeding upon receipt by the Corporation of:
(i) A written affirmation by the director of the director's
good faith belief that the standard of conduct necessary for indemnification by
the Corporation as authorized in this section has been met; and
(ii) A written undertaking by or on behalf of the director to
repay the amount if it shall ultimately be determined that the standard of
conduct has not been met.
(f)(2) The undertaking required by subparagraph (ii) of paragraph (1)
of this subsection shall be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to financial ability
to make the repayment.
(f)(3) Payments under this subsection shall be made as provided by
the Bylaws or contract or as specified in subsection (e) of this section.
(g) Subject to the standard of conduct set forth in subsections (b)
and (c) of this section, the indemnification and advancement of expenses
provided or authorized by this section may not be deemed exclusive of any other
rights, by indemnification or otherwise, to which a director
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may be entitled under the Bylaws, a resolution of stockholders or directors, an
agreement or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
(h) This section does not limit the Corporation's power to pay or
reimburse expenses incurred by a director in connection with an appearance as a
witness in a proceeding at a time when the director has not been made a named
defendant or respondent in the proceeding.
(i) For purposes of this section;
(ii) The Corporation shall be deemed to have requested a
director to serve an employee benefit plan where the performance of the
director's duties to the Corporation also imposes duties on, or otherwise
involves services by, the director to the plan or participants or beneficiaries
of the plan:
(h)(2) Excise taxes assessed on a director with respect to an
employee benefit plan pursuant to applicable law shall be deemed fines; and
(h)(3) Action taken or omitted by the director with respect to an
employee benefit plan in the performance of the director's duties for a purpose
reasonably believed by the director to be in the best interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Corporation.
(j)(1) An officer of the Corporation shall be indemnified as and to
the extent provided in subsection (d) of this section for a director and shall
be entitled, to the same extent as a director, to seek indemnification pursuant
to the provisions of subsection (d);
(j)(2) The Corporation shall indemnify and advance expenses to an
officer, employee or agent of the Corporation to the same extent that it
indemnifies directors under this section; and
(j)(3) The Corporation, in addition, shall indemnify and advance
expenses to an officer, employee or agent who is not a director to such further
extent, consistent with law, as may be provided by its Bylaws, general or
specific action of its Board of Directors or contract.
(k)(1) The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or who, while director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan
against any liability asserted against and incurred by such person in any such
capacity or arising out of such person's position, whether or not the
corporation would have the power to indemnify against liability under the
provisions of this section.
(k)(2) The Corporation may provide similar protection, including a
trust fund, letter of credit, or surety bond, not inconsistent with this
section.
(k)(3) The insurance or similar protection may be provided by a
subsidiary or an affiliate of the Corporation.
(l) Any indemnification of, or advance of expenses to, a director in
accordance with this section, if arising out of a proceeding by or in the right
of the Corporation, shall be reported in
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writing to the stockholders with the notice of the next stockholders' meeting
or prior to the meeting.
VIII. DURATION: The duration of the Corporation shall be perpetual.
IN WITNESS WHEREOF, we have signed these Articles of Amendment and
Restatement to the Articles of Incorporation of Allied Capital Credit
Corporation on the 13th day of September, 1996, and I acknowledge the same to
be my act and deed and that, to the best of my knowledge, information and
belief, all matters and facts stated herein are true in all material respects
and that such statement is made under the penalties of perjury. We further
state that these Articles of Amendment and Restatement were adopted and
approved by the Corporation's Board of Directors pursuant to a written consent
in lieu of a special meeting of such Board of Directors dated September 13,
1996.
[CORPORATE SEAL] ALLIED CAPITAL CREDIT CORPORATION
Attest: /s/ Tricia B. Daniels By: /s/ Katherine C. Marien
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Tricia Benz Daniels Katherine C. Marien
Secretary President & Chief Operating Officer
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