ARTICLES OF INCORPORATION
OF
LAWRENCE FINANCIAL HOLDINGS, INC.
FIRST: The undersigned, Joseph P. Daly, whose address is 5101 Wisconsin
Avenue, N.W., Washington, D.C. 20016, being at least eighteen years of age,
acting as incorporator, does hereby form a corporation under the General Laws of
the State of Maryland.
SECOND: The name of the Corporation (hereinafter "the Corporation") is:
LAWRENCE FINANCIAL HOLDINGS
THIRD: The present address of the principal office of the Corporation in
the State of Maryland is Corporation Trust, Inc., 300 East Lombard Street,
Baltimore, Maryland 21202.
FOURTH: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Laws of the
State of Maryland.
FIFTH:
A. The total number of shares of stock of all classes of stock which the
Corporation has authority to issue is Five Million (5,000,000) shares, having an
aggregate par value of Fifty Thousand Dollars ($50,000), and divided into Four
Million (4,000,000) shares of common stock with a par value of one cent ($.01)
per share, and One Million (1,000,000) shares of preferred stock with a par
value of one cent ($.01) per share.
B. A description of each class of stock of the Corporation, including any
voting powers, designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations and restrictions
thereof, is as follows:
1. Preferred Stock. The Board of Directors is expressly authorized to
classify and reclassify any unissued shares of preferred stock, and to
divide and classify shares of any class into one or more series of such
class, by determining, fixing, or altering from time to time before
issuance any one or more of the following:
a. 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 remain part of the authorized preferred
stock and be subject to classification and reclassification as
provided in this Section.
b. Whether or not and, if so, the rates, amounts, 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.
c. 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.
d. 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 or at such times as the Board of
Directors shall determine.
e. 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.
f. 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 the 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.
g. 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 the purchase or redemption of, any capital stock
of the Corporation, or upon any other action of the Corporation,
including action under this Section, and, if so, the terms and
conditions thereof.
h. 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 of the Corporation.
2. Common Stock. Subject to all of the rights of the preferred stock
as expressly provided in these Articles of Incorporation, by law or by the
Board of Directors in a resolution or resolutions pursuant to this Article
FIFTH, the common stock of the Corporation shall possess all such rights
and privileges as are afforded to capital stock by
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Maryland law in the absence of any express grant of rights or privileges in
the Corporation's Articles of Incorporation, including but not limited to,
the following:
a. Holders of the common stock shall be entitled to one (1) vote
per share on each matter submitted to a vote at a meeting of
stockholders; provided, however, that there shall not be any
cumulative voting of the common stock.
b. Dividends may be declared and paid or set aside for payment
upon the common stock out of any assets or funds of the Corporation
legally available therefor.
c. Upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, its net assets shall be distributed
ratably to holders of the common stock.
C. 1. Notwithstanding any other provision of these Articles of
Incorporation, in no event shall any record owner of any outstanding common
stock which is beneficially owned, directly or indirectly, by a person who, as
of any record date for the determination of stockholders entitled to vote on any
matter, beneficially owns in excess of 10% of the then- outstanding shares of
common stock (the "Limit"), be entitled, or permitted to any vote in respect of
the shares held in excess of the Limit. The number of votes which may be cast by
any record owner by virtue of the provisions hereof in respect of common stock
beneficially owned by such person beneficially owning shares in excess of the
Limit shall be a number equal to the total number of votes which a single record
owner of all common stock beneficially owned by such person would be entitled to
cast, (subject to the provisions of this Article FIFTH) multiplied by a
fraction, the numerator of which is the number of shares of such class or series
which are both beneficially owned by such person and owned of record by such
record owner and the denominator of which is the total number of shares of
common stock beneficially owned by such person owning shares in excess of the
Limit.
2. The following definitions shall apply to this Section C of this
Article FIFTH:
a. "Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, as in effect on the date of filing
of these Articles of Incorporation.
b. "Beneficial ownership" shall be determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, (or any successor rule or statutory
provision), or, if said Rule 13d-3 shall be rescinded and there shall
be no successor rule or provision thereto, pursuant to said Rule 13d-3
as in effect on the date of filing of these Articles of Incorporation;
provided, however, that a person shall, in any event, also be deemed
the "beneficial owner" of any common stock:
(1) which such person or any of its Affiliates beneficially
owns, directly or indirectly; or
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(2) which such person or any of its Affiliates has: (a) the
right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding (but shall not
be deemed to be the beneficial owner of any voting shares
solely by reason of an agreement, contract, or other
arrangement with this Corporation to effect any transaction
which is described in any one or more of Paragraphs 1
through 5 of Section A of Article NINTH of these Articles of
Incorporation ("Article NINTH")), or upon the exercise of
conversion rights, exchange rights, warrants, or options or
otherwise, or (b) sole or shared voting or investment power
with respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be
deemed to be the beneficial owner of any voting shares
solely by reason of a revocable proxy granted for a
particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, with respect to
shares of which neither such person nor any such Affiliate
is otherwise deemed the beneficial owner); or
(3) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any
of its Affiliates acts as a partnership, limited
partnership, syndicate or other group pursuant to any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of
capital stock of this Corporation; and provided further,
however, that: (a) no Director or Officer of this
Corporation (or any Affiliate of any such Director or
Officer) shall, solely by reason of any or all of such
Directors or Officers acting in their capacities as such, be
deemed, for any purposes hereof, to beneficially own any
common stock beneficially owned by any other such Director
or Officer (or any Affiliate thereof); and (b) neither any
employee stock ownership or similar plan of this Corporation
or any subsidiary of this Corporation, nor any trustee with
respect thereto or any Affiliate of such trustee (solely by
reason of such capacity of such trustee), shall be deemed,
for any purposes hereof, to beneficially own any common
stock held under any such plan. For purposes only of
computing the percentage of beneficial ownership of common
stock of a person, the outstanding common stock shall
include shares deemed owned by such person through
application of this subsection but shall not include any
other shares of common stock which may be issuable by this
Corporation pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise. For
all other purposes, the outstanding common stock shall
include only shares of common stock then outstanding and
shall not include any shares of common stock which may be
issuable by this Corporation pursuant to any agreement, or
upon the exercise of conversion rights, warrants or options,
or otherwise.
c. The "Limit" shall mean 10% of the then-outstanding shares of
common stock.
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d. A "person" shall include an individual, a firm, a group acting
in concert, a corporation, a partnership, an association, a joint
venture, a pool, a joint stock company, a trust, an unincorporated
organization or similar company, a syndicate or any other group formed
for the purpose of acquiring, holding or disposing of securities or
any other entity.
3. The Board of Directors shall have the power to construe and apply
the provisions of this Section and to make all determinations necessary or
desirable to implement such provisions, including but not limited to
matters with respect to: (a) the number of shares of common stock
beneficially owned by any person; (b) whether a person is an Affiliate of
another; (c) whether a person has an agreement, arrangement, or
understanding with another as to the matters referred to in the definition
of beneficial ownership; (d) the application of any other definition or
operative provision of the section to the given facts; or (e) any other
matter relating to the applicability or effect of this Section.
4. The Board of Directors shall have the right to demand that any
person who is reasonably believed to beneficially own shares of common
stock in excess of the Limit (or holds of record common stock beneficially
owned by any person in excess of the Limit) supply the Corporation with
complete information as to: (a) the record owner(s) of all shares
beneficially owned by such person who is reasonably believed to own shares
in excess of the Limit; and (b) any other factual matter relating to the
applicability or effect of this Section as may reasonably be requested of
such person.
5. Except as otherwise provided by law or expressly provided in this
Section C, the presence, in person or by proxy, of the holders of record of
shares of capital stock of the Corporation entitling the holders thereof to
cast a majority of the votes (after giving effect, if required, to the
provisions of this Section C) entitled to be cast by the holders of shares
of capital stock of the Corporation entitled to vote shall constitute a
quorum at all meetings of the stockholders, and every reference in these
Articles of Incorporation to a majority or other proportion of capital
stock (or the holders thereof) for purposes of determining any quorum
requirement or any requirement for stockholder consent or approval shall be
deemed to refer to such majority or other proportion of the votes (or the
holders thereof) then entitled to be cast in respect of such capital stock.
6. Any constructions, applications, or determinations made by the
Board of Directors pursuant to this Section in good faith and on the basis
of such information and assistance as was then reasonably available for
such purpose shall be conclusive and binding upon the Corporation and its
stockholders.
7. In the event any provision (or portion thereof) of this Section C
shall be found to be invalid, prohibited or unenforceable for any reason,
the remaining provisions (or portions thereof) of this Section shall remain
in full force and effect, and shall be construed as if such invalid,
prohibited or unenforceable provision had been stricken herefrom or
otherwise
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rendered inapplicable, it being the intent of this Corporation and its
stockholders that each such remaining provision (or portion thereof) of
this Section C remain, to the fullest extent permitted by law, applicable
and enforceable as to all stockholders, including stockholders owning an
amount of stock over the Limit, notwithstanding any such finding.
SIXTH: The name and address of the resident agent of the Corporation are
Corporation Trust, Inc., 300 East Lombard Street, Baltimore, Maryland 21202.
Said resident agent is a Maryland corporation.
SEVENTH:
A. Except as may be altered in the manner set forth in the Bylaws, the
number of directors shall be six (6). The Directors shall be divided into three
classes, as nearly equal in number as reasonably possible, with the term of
office of the first class to expire at the first annual meeting of stockholders,
the term of office of the second class to expire at the annual meeting of
stockholders one year thereafter and the term of office of the third class to
expire at the annual meeting of stockholders two years thereafter with each
Director to hold office until his or her successor shall have been duly elected
and qualified. At each annual meeting of stockholders following such initial
classification and election, Directors elected to succeed those Directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election with each
Director to hold office until his or her successor shall have been duly elected
and qualified.
B. Subject to the rights of holders of any series of preferred stock
outstanding, the 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, or other cause
except removal from office, may be filled only by a majority vote of the
Directors then in office, though less than a quorum, and Directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
and until their successors are duly elected and qualified. No decrease in the
number of Directors constituting the Board of Directors shall shorten the term
of any incumbent Director.
C. Any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and then only by the affirmative vote of
the holders of at least 80% of the shares of stock entitled to vote in the
election of directors.
D. The names of the initial directors who will serve until their successors
are duly elected and qualified are as follows:
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First Class - Term Expiring 2001
Tracy E. Brammer, Jr.
Jack L. Blair
Second Class - Term Expiring 2002
Charles E. Austin, II
Phillip O. McMahon
Third Class - Term Expiring 2003
Herbert J. Karlet
Robert N. Taylor
EIGHTH: The following provisions are hereby adopted for the purpose of
defining, limiting and regulating the powers of the Corporation, the directors
and the stockholders:
A. Except as otherwise provided by statute or by the Bylaws, to determine
whether, to what extent, at what times and places, and under what conditions and
regulations the books, accounts and documents of the Corporation, or any of
them, shall be open to the inspection of stockholders, and, except as so
provided, no stockholder shall have the right to inspect any book, account or
document of the Corporation unless authorized to do so by resolution of the
Board of Directors.
B. The Board of Directors is hereby empowered to authorize the issuance
from time to time of shares of its stock of any class and securities convertible
into shares of its stock of any class for such consideration as determined by
the Board of Directors in accordance with the Maryland General Corporation Law,
and without any action by the stockholders.
C. The Corporation, if authorized by the Board of Directors, may acquire
shares of the Corporation's capital stock.
D. No holder of any stock or any other securities of the Corporation,
whether now or hereafter authorized, shall have any pre-emptive right to
subscribe for or purchase any stock or any other securities of the Corporation
other than such, if any, as the Board of Directors, in its sole discretion, may
determine and at such price or prices and upon such other terms as the Board of
Directors, in its sole discretion, may fix; and any stock or other securities
which the Board of Directors may determine to offer for subscription may, as the
Board of Directors in its sole discretion shall determine, be offered to the
holders of any class, series or type of stock or other securities at the time
outstanding to the exclusion of the holders of any or all other classes, series
or types of stock or other securities at the time outstanding.
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E. The Board of Directors shall have the power to create and to issue,
whether or not in connection with the issuance and sale of any shares of stock
or other securities of the Corporation, rights or options entitling the holders
thereof to purchase from the Corporation any shares of its capital stock of any
class or classes, on such terms and conditions and in such form as the Board of
Directors shall set forth in a resolution.
F. The Board of Directors shall have the power, subject to any limitations
or restrictions imposed by law, to classify or reclassify any unissued shares of
stock whether now or hereafter authorized, by fixing or altering in any one or
more respects before issuance of such shares the voting powers, designations,
preferences and relative, participating, optional or other special rights of
such shares and the qualifications, limitations or restrictions of such
preferences and/or rights.
G. The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws of the Corporation.
H. The Board of Directors shall have the power to declare and authorize the
payment of stock dividends payable in stock of one class of the Corporation's
capital stock to holders of stock of another class or classes of the
Corporation's capital stock.
I. The Board of Directors shall have authority to exercise without a voting
of stockholders all powers of the Corporation, whether conferred by law or by
these Articles of Incorporation, to purchase, lease or otherwise acquire the
business assets or franchises in whole or in part of other corporations or
unincorporated business entities.
J. The Board of Directors shall have the power to borrow or raise money,
from time to time and without limit, and upon any terms, for any corporate
purposes, and, subject to the Maryland General Corporation Law, to authorize the
creation, issuance, assumption or guaranty of bonds, notes or other evidences of
indebtedness for monies so borrowed, to include therein such provisions as to
redeemability, convertibility or otherwise as the Board of Directors, in its
sole discretion, may determine and to secure the payment of principal, interest
or sinking fund in respect thereof by mortgage upon, or the pledge of, or the
conveyance or assignment in trust of, the whole or any part of the properties,
assets and goodwill of the Corporation then owed or thereafter acquired.
K. Subject to the provisions of Article NINTH of these Articles of
Incorporation, the affirmative vote of the holders of a majority of the issued
and outstanding shares of capital stock entitled to vote shall be required to
approve the following actions:
1. The amendment of the Corporation's Articles of Incorporation,
except that (a) any amendment of Section C of Article FIFTH, Sections A and
C of Article SEVENTH, Sections G, K and M of Article EIGHTH, and Article
NINTH of the Corporation's Articles of Incorporation shall require the
affirmative vote of 80% of the issued and outstanding shares of capital
stock entitled to vote, and (b) the Board of Directors, with the approval
of a majority of the entire Board, and without any action by the
stockholders, may amend these
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Articles of Incorporation to increase or decrease the aggregate number of
shares of capital stock of the Corporation or the number of shares of any
class of capital stock that the Corporation has the authority to issue.
2. The merger or consolidation of this Corporation with or into any
other corporation.
3. The sale, lease or exchange of all or substantially all of the
Corporation's property and assets.
4. The dissolution of the Corporation.
L. 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 monetary damages.
No amendment of the Articles of Incorporation of the Corporation or repeal of
any of its provisions 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.
M. The Board of Directors shall, in connection with the exercise of its
business judgment involving any actual or proposed transaction which would or
may involve a change in control of the Corporation (whether by purchases of
shares of stock or any other securities of the Corporation in the open market or
otherwise, tender offer, merger, consolidation, dissolution, liquidation, sale
of all or substantially all of the assets of the Corporation, proxy solicitation
(other than on behalf of the Board of Directors or otherwise), in determining
what is in the best interests of the Corporation and its stockholders and in
making any recommendation to its stockholders, given due consideration to all
relevant factors, including, but not limited to (1) the economic effect, both
immediate and long- term, upon the Corporation's stockholders, including
stockholders, if any, not to participate in the transaction; (2) the social and
economic effect on the employees, depositors and customers of, and others
dealing with, the Corporation and its subsidiaries and on the communities in
which the Corporation and its subsidiaries operate or are located; (3) whether
the proposal is acceptable based on the historical and current operating results
or financial condition of the Corporation; (4) whether a more favorable price
could be obtained for the Corporation's stock or other securities in the future;
(5) the reputation and business practices of the offeror and its management and
affiliates as they would affect the employees; (6) the future value of the stock
or any other securities of the Corporation; and (7) any antitrust or other legal
and regulatory issues that are raised by the proposal. If the Board of Directors
determines that any actual or proposed transaction which would or may involve a
change in control of the Corporation should be rejected, if may take any lawful
action to accomplish its purpose, including, but not limited to, any and all of
the following: advising stockholders not to accept the proposal; instituting
litigation against the party making the proposal; filing complaints with
governmental and regulatory authorities; acquiring the stock or any of the
9
securities of the Corporation; selling or otherwise issuing authorized but
unissued stock, other securities or treasury stock or granting options with
respect thereto; selling any of the assets of the Corporation; acquiring a
company to create an antitrust or other regulatory problem for the party making
the proposal; and obtaining a more favorable offer from another individual or
entity.
NINTH:
A. In addition to any affirmative vote required by law or these Articles of
Incorporation, and except as otherwise expressly provided in this Article NINTH:
1. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with: (a) any Interested Stockholder (as
hereinafter defined); or (b) any other corporation (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, or any Affiliate of any Interested Stockholder, of
any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value (as hereinafter defined) equaling or exceeding 25% or more of
the combined assets of the Corporation and its Subsidiaries; or
3. the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value (as hereinafter defined) equaling or exceeding 25% of the combined
Fair Market Value of the outstanding common stock of the Corporation and
its Subsidiaries, except for any issuance or transfer pursuant to an
employee benefit plan of the Corporation or any Subsidiary thereof; or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
5. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder;
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shall require the affirmative vote of the holders of at least 80% of the voting
power of the then-outstanding shares of stock of the Corporation entitled to
vote in the election of Directors (the "Voting Stock") (after giving effect to
the provisions of Article FIFTH), voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or by any other
provisions of these Articles of Incorporation or in any agreement with any
national securities exchange or otherwise.
The term "Business Combination" as used in this Article NINTH shall mean
any transaction which is referred to in any one or more of Paragraphs 1 through
5 of Section A of this Article NINTH.
B. The provisions of Section A of this Article NINTH shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only the affirmative vote of the majority of the outstanding
shares of capital stock entitled to vote after giving effect to the provisions
of Article FIFTH, or such vote (if any), as is required by law or by these
Articles of Incorporation, if, in the case of any Business Combination that does
not involve any cash or other consideration being received by the stockholders
of the Corporation solely in their capacity as stockholders of the Corporation,
the condition specified in the following Paragraph 1 is met or, in the case of
any other Business Combination, all of the conditions specified in either of the
following Paragraphs 1 or 2 are met:
1. The Business Combination shall have been approved by a majority of
the Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by the holders
of common stock in such Business Combination shall at least be equal
to the higher of the following:
(1) (if applicable) the Highest Per Share Price (as hereinafter
defined), including any brokerage commissions, transfer
taxes and soliciting dealers' fees, paid by the Interested
Stockholder or any of its Affiliates for any shares of
common stock acquired by it: (a) within the two-year period
immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement
Date"); or (b) in the transaction in which it became an
Interested Stockholder, whichever is higher; or
(2) the Fair Market Value per share of common stock on the
Announcement Date or on the date on which the Interested
Stockholder became an
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Interested Stockholder (such latter date is referred to in
this Article NINTH as the "Determination Date"), whichever
is higher.
b. The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class of outstanding Voting Stock other than common
stock shall be at least equal to the highest of the following (it
being intended that the requirements of this Subparagraph (b) shall be
required to be met with respect to every such class of outstanding
Voting Stock, whether or not the Interested Stockholder has previously
acquired any shares of a particular class of Voting Stock):
(1) (if applicable) the Highest Per Share Price (as hereinafter
defined), including any brokerage commissions, transfer
taxes and soliciting dealers' fees, paid by the Interested
Stockholder for any shares of such class of Voting Stock
acquired by it: (a) within the two-year period immediately
prior to the Announcement Date; or (b) in the transaction in
which it became an Interested Stockholder, whichever is
higher; or
(2) (if applicable) the highest preferential amount per share to
which the holders of shares of such class of Voting Stock
are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
or
(3) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date,
whichever is higher.
c. The consideration to be received by holders of a particular
class of outstanding Voting Stock (including common stock) shall be in
cash or in the same form as the Interested Stockholder has previously
paid for shares of such class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration to be
received per share by holders of shares of such class of Voting Stock
shall be either cash or the form used to acquire the largest number of
shares of such class of Voting Stock previously acquired by the
Interested Stockholder. The price determined in accordance with
Paragraph 2 of Section B of this Article NINTH shall be subject to
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
d. After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (1) except as approved by a majority of the Disinterested
Directors (as hereinafter defined), there shall have been no failure
to declare and pay at the regular date therefor any full quarterly
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dividends (whether or not cumulative) on any outstanding stock having
preference over the common stock as to dividends or liquidation; (2)
there shall have been: (a) no reduction in the annual rate of
dividends paid on the common stock (except as necessary to reflect any
subdivision of the common stock), except as approved by a majority of
the Disinterested Directors; and (b) an increase in such annual rate
of dividends as necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the number of
outstanding shares of the common stock, unless the failure to so
increase such annual rate is approved by a majority of the
Disinterested Directors, and (3) neither such Interested Stockholder
or any of its Affiliates shall have become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming an Interested
Stockholder.
e. After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided, directly or indirectly, by the Corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise.
f. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, and the rules or regulations thereunder) shall be mailed to
stockholders of the Corporation at least thirty (30) days prior to the
consummation of such Business Combination (whether or not such proxy
or information statement is required to be mailed pursuant to such Act
or subsequent provisions).
C. For the purposes of this Article NINTH:
1. A "Person" shall include an individual, a firm, a group acting in
concert, a corporation, a partnership, an association, a joint venture, a
pool, a joint stock company, a trust, an unincorporated organization or
similar company, a syndicate or any other group formed for the purpose of
acquiring, holding or disposing of securities or any other entity.
2. "Interested Stockholder" shall mean any person (other than the
Corporation or any Holding Company or Subsidiary thereof) who or which:
a. is the beneficial owner, directly or indirectly, of more than
10% of the voting power of the outstanding Voting Stock; or
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b. is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
c. is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933, as amended.
3. For purposes of this Article NINTH, "beneficial ownership" shall be
determined in the manner provided in Section C of Article FIFTH hereof.
4. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended, as in effect on the
date of filing of these Articles of Incorporation.
5. "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph 2 of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
6. "Disinterested Director" means any member of the Board of Directors
who is unaffiliated with the Interested Stockholder and was a member of the
Board of Directors prior to the time that the Interested Stockholder became
an Interested Stockholder, and any Director who is thereafter chosen to
fill any vacancy of the Board of Directors or who is elected and who, in
either event, is unaffiliated with the Interested Stockholder and in
connection with his or her initial assumption of office is recommended for
appointment or election by a majority of Disinterested Directors then on
the Board of Directors.
7. "Fair Market Value" means:
a. in the case of stock, the highest closing sales price of the
stock during the 30-day period immediately preceding the date in
question of a share of such stock on the National Association of
Securities Dealers Automated Quotation System or any system then in
use, or, if such stock is admitted to trading on a principal United
States securities exchange registered under the Securities Exchange
Act of 1934, as amended, Fair Market Value shall be the highest sale
price reported during the 30-day period preceding the date in
question, or, if no such quotations are available, the Fair Market
Value on the date in question of a share of such stock as determined
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by the Board of Directors in good faith, in each case with respect to
any class of stock, appropriately adjusted for any dividend or
distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater
number of shares of such stock or any combination or reclassification
of outstanding shares of such stock into a smaller number of shares of
such stock; and
b. in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as determined by
the Board of Directors in good faith.
8. Reference to "Highest Per Share Price" shall in each case with
respect to any class of stock reflect an appropriate adjustment for any
dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number
of shares of such stock or any combination or reclassification of
outstanding shares of such stock into a smaller number of shares of such
stock.
9. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in Subparagraphs (a) and (b) of Paragraph 2 of Section B of this Article
NINTH shall include the shares of common stock and/or the shares of any
other class of outstanding Voting Stock retained by the holders of such
shares.
D. A majority of the Disinterested Directors of the Corporation shall have
the power and duty to determine for the purposes of this Article NINTH, on the
basis of information known to them after reasonable inquiry: (1) whether a
person is an Interested Stockholder; (2) the number of shares of Voting Stock
beneficially owned by any person; (3) whether a person is an Affiliate or
Associate of another; and (4) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination has an aggregate Fair Market Value equaling or exceeding 25% of the
combined Fair Market Value of the common stock of the Corporation and its
Subsidiaries. A majority of the Disinterested Directors shall have the further
power to interpret all of the terms and provisions of this Article NINTH.
E. Nothing contained in this Article NINTH shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
F. Notwithstanding any other provisions of these Articles of Incorporation
or any provision of law which might otherwise permit a lesser vote or no vote,
but in addition to any affirmative vote of the holders of any particular class
or series of the Voting Stock required by law, these Articles of Incorporation,
the affirmative vote of the holders of at least 80% of the voting power of all
of the then-outstanding shares of the Voting Stock (after giving effect to the
provisions of Article FIFTH), voting together as a single class, shall be
required to alter, amend or repeal this Article NINTH.
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TENTH: The Corporation shall indemnify (A) its directors and officers,
whether serving the Corporation or at its request any other entity, to the
fullest extent required or permitted by the general laws of the State of
Maryland now or hereafter in force, including the advance of expenses under the
procedures required, and (B) 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 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 such
provisions or such further indemnification arrangements as may be permitted by
law. No amendment of the Articles of Incorporation of the Corporation shall
limit or eliminate the right to indemnification provided hereunder with respect
to acts or omissions occurring prior to such amendment or repeal.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation,
acknowledging the same to be may act as of this 2nd day of August, 2000.
/s/ Joseph P. Daly
-----------------------
Joseph P. Daly
Incorporator
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