EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CIB MARINE BANCSHARES, INC.
Pursuant to Section 180.1007 of the Wisconsin Business Corporation
Law, these Amended and Restated Articles of Incorporation shall supersede and
take the place of the Corporation's heretofore existing Articles of
Incorporation and all amendments thereto.
ARTICLE 1
NAME
The name of the Corporation is CIB Marine Bancshares, Inc.
ARTICLE 2
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State
of Wisconsin is N27 W24025 Paul Court, Pewaukee, Wisconsin 53072. The name of
its registered agent at such address is Donald J. Straka.
ARTICLE 3
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Wisconsin Business
Corporation Law.
ARTICLE 4
CLASSES OF STOCK
The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is fifty-five million (55,000,000)
shares, which are divided into two classes as follows:
(a) five million (5,000,000) shares of capital stock designated as
"Preferred Stock," with a par value of $1.00 per share; and
(b) fifty million (50,000,000) shares of capital stock designated
as "Common Stock," with a par value of $1.00 per share (the
"Common Stock").
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ARTICLE 5
RIGHTS AND PREFERENCES OF CLASSES OF STOCK
The designations, preferences, voting powers and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of each of the classes of stock of the Corporation are as
follows:
5.1 PREFERRED STOCK. Pursuant to Section 180.0602(1) of the Wisconsin
Business Corporation Law, the Board of Directors is authorized, at any time and
from time to time, to provide for the issuance of shares of Preferred Stock in
one or more series with such designations, preferences, voting powers and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof as are stated and expressed in the
resolution or resolutions providing for the issuance of such Preferred Stock
adopted by the Board of Directors, and as are not stated and expressed in these
Articles of Incorporation or any amendment thereto, including, but not limited
to, determination of any of the following:
(a) the distinctive serial designation and the number of shares
constituting a series;
(b) the dividend rate or rates, whether dividends are cumulative
(and if so on what terms and conditions), the payment date or dates for
dividends, and the participating or other special rights, if any, with
respect to dividends;
(c) the voting rights, full or limited, if any, of the shares of the
series, which may include the right to elect a specified number of
directors if dividends on the series are not paid for in a specified
period of time;
(d) whether the shares of the series are redeemable and, if so, the
price or prices at which, and the terms and conditions on which, the
shares may be redeemed, which prices, terms and conditions may vary under
different conditions and at different redemption dates;
(e) the amount or amounts, if any, payable upon the shares of the
series in the event of voluntary or involuntary liquidation, dissolution
or winding up of the Corporation prior to any payment or distribution of
the assets of the Corporation to any class or classes of stock of the
Corporation ranking junior to the series;
(f) whether the shares of the series are entitled to the benefit of
a sinking or retirement fund to be applied to the purchase or redemption
of shares of the series and the amount of the fund and the manner of its
application, including the price or prices at which the shares of the
series may be redeemed or purchased through the application of the fund;
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(g) whether the shares are convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the same or
any other class or classes of stock of the Corporation and the conversion
price or prices, or the rates of exchange, and the adjustments thereof, if
any, at which the conversion or exchange may be made, and any other terms
and conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of a series, as the Board of Directors may
deem advisable and as are not inconsistent with the provisions of these
Articles of Incorporation.
5.2 COMMON STOCK.
(a) Dividends. Subject to the preferential rights of the Preferred
Stock, the holders of the Common Stock are entitled to receive, to the
extent permitted by law, such dividends as may be declared from time to
time by the Board of Directors.
(b) Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up of the
Corporation, after distribution in full of the preferential amounts, if
any, to be distributed to the holders of shares of Preferred Stock,
holders of Common Stock shall be entitled to receive all of the remaining
assets of the Corporation of whatever kind available for distribution to
shareholders, ratably in proportion to the number of shares of Common
Stock held by them respectively. The Board of Directors may distribute in
kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any part
of such remaining assets to any other corporation, trust or other entity
and receive payment therefor in cash, stock or obligations of such other
corporation, trust, or other entity, or any combination hereof, and may
sell all or any part of the consideration so received and distribute any
balance thereof in kind to holders of Common Stock. Neither the merger or
consolidation of the Corporation into or with any other corporation or
corporations, nor the purchase or redemption of shares of stock of any
class of the corporation, nor the sale or transfer by the corporation of
all or any part of its assets, nor the reorganization or recapitalization
of the corporation, shall be deemed to be a dissolution, liquidation or
winding up of the corporation for the purposes of this paragraph.
(c) Voting Rights. Except as may be otherwise required by law or
these Articles of Incorporation, each holder of Common Stock has one vote
in respect of each share of stock held by the holder of record on the
books of the Corporation on all matters voted upon by the shareholders.
5.3 CHANGES IN AUTHORIZED CAPITAL STOCK. The number of authorized shares
of any class or series of stock may be increased or decreased without the
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approval of such class or series as a separate voting group, except to the
extent that the Board of Directors shall specify, in the resolution or
resolutions providing for the issuance of a series of stock, that the approval
of the holders of such series shall be required to increase or decrease the
number of authorized shares of such series.
ARTICLE 6
NO PREEMPTIVE RIGHTS
No shareholder shall have any preemptive right to subscribe to an
additional issue of stock, whether now or hereafter authorized, of any class or
series or to any securities of the Corporation convertible into such stock.
ARTICLE 7
DIRECTORS
7.1 NUMBER, ELECTION AND TERMS OF DIRECTORS.
(a) The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors. Subject to the rights of
the holders of any class or series of Preferred Stock to elect additional
directors under specified circumstances, the number of directors
constituting the Board or Directors shall be initially fixed at ten and
shall thereafter be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by the affirmative vote of a
majority of the number of directors that the Corporation would have at the
time if there were no vacancies existing in the Board of Directors (the
"Whole Board").
(b) The Board of Directors, other than the directors who may be
elected by the holders of any class or series of Preferred Stock under
specified circumstances, shall be divided into three classes, as nearly
equal in number as possible. The initial term of office of Class I
directors shall expire at the annual meeting of shareholders to be held in
2000; the initial term of office of Class II directors shall expire at the
annual meeting of shareholders to be held in 2001; and the initial term of
office of Class III directors shall expire at the annual meeting of
shareholders to be held in 2003, and in each case until their respective
successors are elected and qualified. At each annual meeting of
shareholders, directors shall be chosen to succeed those whose terms then
expire and shall be elected for a term of office expiring at the third
succeeding annual meeting of shareholders after their election, and in
each case until their respective successors are elected and qualified.
7.2 INITIAL BOARD OF DIRECTORS. The initial Board of Directors shall
consist of the following persons, each of whom shall serve as a member of the
class of directors set forth below:
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CLASS I (TERMS EXPIRE AT THE 2000 ANNUAL MEETING)
John T. Bean
1631 S. Highland
Arlington Heights, Illinois 60007
Steven C. Hillard
c/o Hilmun Holdings
P.O. Box 3966
Champaign, Illinois 61826
J. Michael Straka
N27 W24025 Paul Court
Pewaukee, Wisconsin 53072
CLASS II (TERMS EXPIRE AT THE 2001 ANNUAL MEETING)
Norman Baker
14493 S. Padre Island Drive
Suite A, Box 321
Corpus Christi, Texas 78418
W. Scott Blake
731 N. Jackson Street, Suite 400
Milwaukee, Wisconsin 53202
Dean Katsaros
2301 Village Green Place, Suite B
Champaign, Illinois 61821
Donald M. Trilling
c/o Illini Tile
1300 Touhy Avenue
Elk Grove Village, Illinois 60007-5304
CLASS III (TERMS EXPIRE AT THE 2002 ANNUAL MEETING)
Jose Araujo
Calle C RES DE MORO Valle Arriba
Caracas, Venezuela
Jerry D. Maahs
19385 Buckingham Place
Brookfield, Wisconsin 53045
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Howard E. Zimmerman
111 W. Washington Street, Suite 902
Chicago, Illinois 60602
7.3 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Subject to the rights of
any class or series of Preferred Stock then outstanding and unless the Board of
Directors otherwise determines, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote of the
directors then in office, although less than a quorum, or by a sole remaining
director.
Directors chosen to fill vacancies pursuant to this Section 5.2
shall hold office for a term expiring at the annual meeting of shareholders at
which the term of the class to which they have been elected expires. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director. Newly created directorships shall be allocated
among the classes of directors so that each class of directors shall consist, as
nearly as possible, of one-third of the total number of directors.
7.4 REMOVAL. Subject to the rights of the holders of any class or series
of Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least eighty percent (80%) of the
outstanding shares of all classes of stock of the Corporation generally entitled
to vote in the election of directors, considered for purposes of this Section
5.4 as one class.
ARTICLE 8
BY-LAWS
No provision of the by-laws of the Corporation may be amended,
altered or repealed and no provision inconsistent with the by-laws of the
Corporation may be adopted, except by (a) the affirmative vote of a majority of
the members of the Whole Board, or (b) the affirmative vote of the holders of at
least eighty percent (80%) of the outstanding shares of all classes of stock of
the Corporation generally entitled to vote in the election of directors,
considered for purposes of this Article 6 as one class.
ARTICLE 9
FAIR PRICE PROVISION
9.1 DEFINITIONS. For purposes of this Article 9, the following terms shall
have the following meanings:
(a) "Business Combination" shall mean:
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(i) any merger, consolidation or share exchange of the
Corporation or any Subsidiary with or into (A) an Interested
Shareholder or (b) any other person (whether or not itself an
Interested Shareholder) which is, or after such merger,
consolidation, or share exchange would be, an Affiliate or Associate
of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions)
to or with, or proposed by or on behalf of, an Interested
Shareholder or an Affiliate or Associate of an Interested
Shareholder of any assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value equal to or greater than one
percent (1%) of the total assets of the Corporation as reported in
the consolidated balance sheet of the Corporation as of the end of
the most recent quarter with respect to which such balance sheet has
been prepared; or
(iii) 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, or proposed by
or on behalf of, an Interested Shareholder or an Affiliate or
Associate of an Interested Shareholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate Fair Market Value equal to or greater than one percent
(1%) of the total assets of the Corporation as reported in the
consolidated balance sheet of the Corporation as of the end of the
most recent quarter with respect to which such balance sheet has
been prepared; or
(iv) any reclassification of securities (including any reverse
stock split), recapitalization or reorganization of the Corporation
or any Subsidiary, or any merger, consolidation or share exchange of
the Corporation with any Subsidiary or any other transaction
(whether or not with or into or otherwise involving an Interested
Shareholder) which has the effect, directly or indirectly, of
increasing the percentage of the outstanding shares of (A) any class
of equity securities of the Corporation or any Subsidiary or (b) any
class of securities of the Corporation or any Subsidiary convertible
into equity securities of the Corporation or any Subsidiary,
represented by securities of such class which are directly or
indirectly owned by an Interested Shareholder and all of its
Affiliates and Associates;
(v) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation or any Subsidiary or any spin-off
or split-up of any kind of the Corporation or any Subsidiary
proposed by or on behalf of the Interested Shareholder or any
Affiliate or Associate of an Interested Shareholder; or
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(vi) any agreement, contract, or other arrangement providing
for any one or more of the actions specified in clauses (i) through
(v) of this Section 9.1(a).
(b) "Affiliate" and "Associate" shall have the respective meanings
given such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
in effect on the initial date of filing of these Articles of
Incorporation.
(c) "Beneficial Owner" shall have the meaning given such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act, as
in effect on the initial date of filing of these Articles of
Incorporation, and a person shall "Beneficially Own" and have "Beneficial
Ownership" of any securities of which such person is the Beneficial Owner.
(d) "Continuing Director" shall mean (i) any member of the Board of
Directors of the Corporation who (A) is neither the Interested Shareholder
involved in the Business Combination as to which a vote of Continuing
Directors is provided for hereunder, nor an Affiliate, Associate,
employee, agent or nominee of such Interested Shareholder, or the relative
of any of the foregoing, and (B) was a member of the Board of Directors
prior to the time that such Interested Shareholder became an Interested
Shareholder; and (ii) any successor of a Continuing Director described in
clause (i) who is recommended or elected to succeed a Continuing Director
by the affirmative vote of a majority of Continuing Directors then on the
Board of Directors of the Corporation.
(e) "Fair Market Value" shall mean (i) in the case of stock, the
highest closing sales price during the 30-day period immediately preceding
the date in question of a share of such stock on the principal national
securities exchange on which such stock is listed or admitted to trading
or on the Nasdaq Stock Market's National Market, or, if such stock is not
listed or admitted to trading on any such exchange or the Nasdaq Stock
Market's National Market, the highest last quoted price or, if not so
quoted, the highest average high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("Nasdaq") or such
system then in use during the 30-day period preceding the date in
question, or, if no such quotation is available, the fair market value on
the date in question of a share of such stock as determined by a majority
of the Continuing Directors in good faith; and (ii) 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 a majority of the Continuing
Directors in good faith.
(f) "Interested Shareholder" shall mean any person (other than the
Corporation or a Subsidiary, any employee benefit plan maintained by the
Corporation or any Subsidiary, or any trustee or fiduciary with respect to
any such plan when acting in such capacity) who or which:
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(i) is the Beneficial Owner of ten percent (10%) or more of
the Voting Shares:
(ii) is an Affiliate or an Associate of the Corporation and at
any time within the two -year period immediately prior to the date
in question, was the Beneficial Owner of 10% or more of the voting
power of the then- outstanding Voting Shares; or
(iii) is an assignee of, or has otherwise succeeded to, any
shares of Voting Stock of the Corporation of which an Interested
Shareholder was the Beneficial Owner at any time within the two-year
period immediately prior to the date in question, 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.
For the purpose of determining whether a person is an Interested
Shareholder, the outstanding Voting Shares shall include unissued Voting
Shares of which the Interested Shareholder is the Beneficial Owner but
shall not include any other Voting Shares which may be issuable pursuant
to any agreement, arrangement or understanding, or upon the exercise of
conversion rights, warrants or options, or otherwise, to any person who is
not an Interested Shareholder.
(g) A "person" shall include any individual, firm, corporation,
partnership, trust or other entity, organization or association, as well
as any syndicate or group deemed to be a person under Section 14(d)(2) of
the Exchange Act.
(h) "Subsidiary" shall mean any corporation, limited partnership,
general partnership or other firm or entity of which a majority of any
class of equity security or other equity interests owned, directly or
indirectly, by the Corporation; provided, however, that for purposes of
the definition of Interested Shareholder set forth in paragraph (f) of
this Section 9.1, the term "Subsidiary" shall mean only a corporation,
limited partnership, general partnership or other firm or entity of which
a majority of each class of equity security or other equity interest is
owned, directly or indirectly, by the Corporation.
(i) "Voting Shares" shall mean the outstanding shares of all classes
of stock of the Corporation generally entitled to vote in the election of
directors, considered for purposes of this Article 9 as one class.
9.2 VOTE REQUIRED FOR CERTAIN BUSINESS TRANSACTIONS. In addition to any
affirmative vote required by law or by these Articles of Incorporation, and
except as otherwise expressly provided in Section 9.3 of this Article, any
Business Combination
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shall require the affirmative vote of the holders of record of outstanding
shares representing at least (a) eighty percent (80%) of the voting power of the
then outstanding shares of the Voting Stock of the Corporation, voting together
as a single class, and (b) sixty-six and two thirds percent (66-2/3%) of the
voting power of the Voting Stock owned by Persons other than any Interested
Shareholder and its Associates and Affiliates, 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.
9.3 WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section 9.2 of
this Article shall not apply to a particular Business Combination, and such
Business Combination shall require only such affirmative vote, if any, of the
shareholders as is required by law and any other provision of these Articles of
Incorporation, if all of the conditions specified in either of the following
paragraphs (a) and (b) are met.
(a) Approval by Continuing Directors. The Business Combination has
been approved by the affirmative vote of a majority of the Continuing
Directors, even if the Continuing Directors do not constitute a quorum of
the entire Board of Directors.
(b) Form of Consideration, Price and Procedure Requirements. All of
the following conditions shall have been met:
(i) With respect to each share of each class of Voting Stock
of the Corporation (including Common Stock), the holder thereof
shall be entitled to receive on or before the date of the
consummation of the Business Combination (the "Consummation Date")
consideration, in the form specified in (b)(ii) hereof, with an
aggregate Fair Market Value as of the Consummation Date at least
equal to the highest of the following:
(A) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Shareholder to which the Business
Combination relates, or by any Affiliate or Associate of such
Interested Shareholder, for any shares of such class of Voting
Stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement
Date"), (2) within the two-year period prior to the
Consummation Date or (3) within the two-year period prior to,
or in the transaction in which it became, an Interested
Shareholder, whichever is highest; plus, in any such case,
interest compounded annually from the earliest date on which
that highest per share acquisition price was paid through the
Consummation Date at the rate for one-year United States
Treasury obligations from time to time in effect, less the
aggregate amount of any cash dividends paid and the Fair
Market Value of any dividends paid other than in
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cash per share of such class of Voting Stock since that
earliest date, up to the amount of that interest;
(B) the Fair Market Value per share of such class of
Voting Stock of the Corporation on the Announcement Date or on
the date on which the Interested Shareholder became an
Interested Shareholder, whichever is higher; plus interest
compounded annually from that date through the Commencement
Date at the rate for one-year United States Treasury
obligations from time to time in effect; less the aggregate
amount of any cash dividends paid, and the Fair Market Value
of any dividends paid other than in cash, per share of such
class of Voting Stock since that date, up to the amount of
that interest; and
(C) the highest preferential amount per share, if any,
to which the holders of shares of such class of Voting Stock
of the Corporation are entitled in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation; plus the aggregate amount of any dividends
declared or due as to which those holders are entitled prior
to payment of dividends on some other class or series of stock
(unless the aggregate amount of those dividends is included in
that preferential amount).
(ii) The consideration to be received by holders of a
particular class of outstanding Voting Stock of the Corporation
(including Common Stock) as described in Section 9.3(b)(i) hereof
shall be in cash or, if the consideration previously paid by or on
behalf of the Interested Shareholder in connection with its
acquisition of beneficial ownership of shares of such class of
Voting Stock consisted in whole or in part of consideration other
than cash, then in the same form as such consideration. If such
payment for shares of any class of Voting Stock of the Corporation
has been made in varying forms of consideration, then the form of
consideration for such class of Voting Stock shall be either cash or
the form used to acquire the beneficial ownership of the largest
number of shares of such class of Voting Stock previously acquired
by the Interested Shareholder.
(iii) After such Interested Shareholder has become an
Interested Shareholder and prior to the Consummation Date:
(A) except as approved by the affirmative vote of a
majority of the Continuing Directors, there shall have been no
failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Stock of the Corporation, if any;
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(B) there shall have been (1) no reduction in the annual
rate of dividends paid on the Common Stock of the Corporation
(except as necessary to reflect any subdivision of the Common
Stock), except as approved by the affirmative vote of a
majority of the Continuing Directors, and (2) 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 Common Stock, unless the failure so to increase such
annual rate is approved by the affirmative vote of a majority
of the Continuing Directors; and (3) such Interested
Shareholder shall not have become the Beneficial Owner of any
additional shares of Voting Stock of the Corporation except
(x) as part of the transaction which results in such
Interested Shareholder becoming an Interested Shareholder, (y)
by virtue of proportionate stock splits, stock dividends or
other distributions of stock in respect of stock not
constituting a Business Combination, or (z) through a Business
Combination meeting all of the considerations of this Section
9.3.
(iv) After such Interested Shareholder has become an
Interested Shareholder, neither such Interested Shareholder nor any
Affiliate or Associate thereof shall have received the benefit,
directly or indirectly (except proportionately as a shareholder of
the Corporation), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the Corporation.
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Exchange Act and the General Rules and Regulations thereunder (or
any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to the shareholders 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 thereof). Such proxy
or information statement shall contain, (A) any recommendations as
to the advisability (or inadvisability) of the Business Transaction
that a majority of the Continuing Directors may choose to state, and
(B) if a majority of the total number of Continuing Directors so
requests, an opinion of a reputable investment banking firm (which
firm shall be selected by a majority of the total number of
Continuing Directors, furnished with all information it reasonably
requests, and paid a reasonable fee for its services by the
Corporation upon the Corporation's receipt of such opinion) as to
the fairness (or lack of fairness) of the terms of the proposed
Business Combination from the point of view of the holders of shares
of Voting Stock (other than the Interested Shareholder).
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9.4 POWERS OF CONTINUING DIRECTORS. A majority of the Continuing Directors
shall have the power and duty to determine, on the basis of information known to
them after reasonable inquiry, all facts necessary to determine compliance with
this Article, including, without limitation, (A) whether a Person is an
Interested Shareholder, (B) the number of shares of Voting Stock of the
Corporation beneficially owned by any Person, (C) whether a Person is an
Affiliate or Associate of another, (D) whether the requirements of paragraph (b)
of Section 9.3 have been met with respect to any Business Combination, and (E)
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 equal to or greater than one percent (1%) of the total assets
of the Corporation as reported in the consolidated balance sheet of the
Corporation as of the end of the most recent quarter with respect to which such
balance sheet has been prepared; and the good faith determination of a majority
of the Continuing Directors on such matters shall be conclusive and binding for
all the purposes of this Article 9.
9.5 NO EFFECT ON FIDUCIARY OBLIGATIONS.
(a) Nothing contained in this Article shall be construed to relieve
an Interested Shareholder or any Associate or Affiliate of an Interested
Shareholder from any fiduciary obligation imposed by law.
(b) The fact that any Business Combination complies with the
provisions of Section 9.3(b) of this Article shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the shareholders of the Corporation,
nor shall such compliance limit, prohibit or otherwise restrict in any
manner the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such
Business Combination.
ARTICLE 10
SHAREHOLDER ACTION BY WRITTEN CONSENT
Action required or permitted by the Wisconsin Business Corporation
Law to be taken at a shareholders' meeting may be taken without a meeting
without action by the board of directors only by all shareholders entitled to
vote on the action.
ARTICLE 11
ELECTION TO BE SUBJECT TO CERTAIN PROVISIONS
OF THE WISCONSIN BUSINESS CORPORATION LAW
The Corporation elects to be subject to Sections 180.1130 to
180.1134 and Section 180.1150 of the Wisconsin Business Corporation Law as if it
were an
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issuing public corporation within the meaning of Section 180.1130(8) of the
Wisconsin Business Corporation Law.
ARTICLE 12
AMENDMENTS TO THE ARTICLES
The Corporation reserves the right to amend, alter or repeal any
provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred upon shareholders and
directors herein are granted subject to this reservation. Notwithstanding that a
lesser or different percentage may be specified by the Wisconsin Business
Corporation Law and in addition to any affirmative vote of any particular class
or series of the capital stock that may be required by the Wisconsin Business
Corporation Law and these Articles of Incorporation,
(a) the affirmative vote of the holders of at least eighty percent
(80%) of the outstanding shares of all classes of stock of the Corporation
generally entitled to vote in the election of directors, considered for
purposes of this Article 12 as one class, shall be required to amend,
alter or repeal in any respect, or adopt any provision inconsistent with,
(i) Section 5.1 of Article 5,
(ii) Sections 7.1, 7.3 and 7.4 of Article 7,
(iii) Article 8,
(iv) Article 10,
(v) Article 11, and
(vi) this Article 12(a);
provided, however, that if such amendment, alteration, repeal or adoption
of an inconsistent provision is declared advisable by the Board of
Directors by the affirmative vote of at least seventy-five percent (75%)
of the Whole Board, such amendment, alteration, repeal or adoption of an
inconsistent provision need only be approved by the vote then required
under the Wisconsin Business Corporation Law; and
(b) the affirmative vote of the holders of at least eighty percent
(80%) of the outstanding shares of all classes of stock of the Corporation
generally entitled to vote in the election of directors, considered for
purposes of this Article 12 as one class, shall be required to amend,
alter or repeal in any respect, or adopt any provision inconsistent with
Article 9 or this Article 12(b); provided, however, that if such
amendment, alteration, repeal or adoption of an inconsistent provision is
declared advisable by the Board of Directors by the
Page 15
affirmative vote of at least seventy-five percent (75%) of the Whole Board
and a majority of the Continuing Directors, such amendment, alteration,
repeal or adoption of an inconsistent provision need only be approved by
the vote then required under the Wisconsin Business Corporation Law.
EXECUTED ON JUNE 28, 1999.
/s/ Donald J. Straka
----------------------------------------
Donald J. Straka, Senior Vice President,
General Counsel and Secretary
This document was drafted by Attorney Donald J. Straka, Wisconsin Bar No.
1011798, General Counsel of CIB Marine Bancshares, Inc., N27 W24025 Paul
Court, Pewaukee, Wisconsin 53072 and Attorney Shirley M. Lukitsch, SCHIFF,
HARDIN & WAITE, 6600 Sears Tower, 233 S. Wacker Drive, Chicago, Illinois
60606-6473.