1
EXHIBIT 3.2
ARTICLES OF MERGER
BETWEEN
ALLIED CAPITAL FINANCIAL CORPORATION
AND ALLIED FINANCIAL CORPORATION II
Pursuant to the provisions of Section 3-109 of the Maryland General
Corporation Law (the "GCL"), the undersigned corporations hereby certify that:
ARTICLE I.
AGREEMENT TO MERGE
1.01. Allied Capital Financial Corporation, a Maryland corporation
("Acquiror"), and Allied Financial Corporation II, a Maryland corporation
("Acquiree"), each agree to the merger of Acquiree with and into Acquiror (the
"Merger"). At the Effective Time (as defined in Section 7.01) of the Merger,
Acquiree will be merged with and into Acquiror in accordance with the
provisions of the GCL. Acquiror shall be the surviving corporation (the
"Surviving Company") and shall continue in existence under its charter, as
amended by these Articles of Merger, and its bylaws, and the separate existence
of Acquiree shall cease. The terms and conditions of the Merger hereby agreed
upon and the manner of carrying the same into effect are hereinafter set forth.
From and after the Effective Time, Acquiror shall possess all the assets,
rights, privileges, powers and franchises and be subject to all of the
restrictions, liabilities, obligations, disabilities and duties of Acquiree.
1.02. Acquiror and Acquiree intend that the Merger qualify as a
tax-free reorganization under Section 368(a) of the Internal Revenue Code of
1986, as amended. Acquiror and Acquiree also intend that this Agreement
constitute a "plan of reorganization" within the meaning of Treas. Reg. Section
1.368-1(c).
ARTICLE II.
PLACE OF INCORPORATION; PRINCIPAL OFFICES
2.01. The name and place of incorporation of each party to these
Articles is as follows:
- 1 -
2
Name Place
---- -----
Allied Capital Financial Corporation Maryland
Allied Financial Corporation II Maryland
2.02. The name and place of incorporation of the surviving
corporation is as follows:
Name Place
---- -----
Allied Capital Financial Corporation Maryland
2.03. The principal office of Acquiror is located in Baltimore City,
Maryland.
2.04. The principal office of Acquiree is located in Baltimore City,
Maryland. Acquiree owns no interest in land in the State of Maryland.
ARTICLE III.
APPROVALS
3.01. The terms and conditions of the transaction set forth in these
Articles were advised, authorized and approved by each corporation party to
these Articles in the manner and by the vote required by its charter and the
laws of the State of Maryland. The manner of approval was as follows:
(a) Acquiror
(i) The Board of Directors of Acquiror, at a meeting held
on December 11, 1997, adopted a resolution which declared that the
Merger was advisable on substantially the terms and conditions set
forth or referred to in the resolution and directed that the Merger be
submitted for consideration at a special meeting of the stockholders
of Acquiror.
(ii) The Merger was approved in accordance with the
charter of Acquiror and the GCL by the sole stockholder of Acquiror on
December 31, 1997 without a meeting of stockholders, and a written
consent which sets forth the action of approving the Merger and is
signed by the sole stockholder has been filed with Acquiror's records
of stockholders meetings.
(b) Acquiree
(i) The Board of Directors of Acquiree, at a meeting held
on December 11, 1997, adopted a resolution which declared that the
Merger was advisable on substantially the terms and conditions set
forth or referred to in the resolution and directed that the Merger be
submitted for consideration at a special meeting of the stockholders
of Acquiree.
- 2 -
3
(ii) The Merger was approved in accordance with the
charter of Acquiree and the GCL by the sole stockholder of Acquiree on
December 31, 1997 without a meeting of stockholders, and a written
consent which sets forth the action of approving the Merger and is
signed by the sole stockholder has been filed with Acquiree's records
of stockholders meetings.
ARTICLE IV.
AMENDMENT TO THE CHARTER OF THE SURVIVING COMPANY
The following amendments to the charter of Acquiror are to be effected
as part of the Merger:
4.01. Article III of the Amended and Restated Articles of
Incorporation of Acquiror shall be amended to read in its entirety as follows:
PRINCIPAL OFFICE; RESIDENT AGENT. The address of the principal office
of the Corporation in the State of Maryland is: 00 Xxxx Xxxxx Xxxxxx /
Xxxxxxxxx, Xxxxxxxx 00000. The name and address of the resident agent
of the Corporation in the State of Maryland is: The Xxxxxxxx-Xxxx
Corporation System, Maryland / 00 Xxxx Xxxxx Xxxxxx / Xxxxxxxxx,
Xxxxxxxx 00000.
4.02. The first sentence of Article VII, Section A, of the Amended
and Restated Articles of Incorporation of Acquiror shall be amended to read in
its entirety as follows:
The Corporation may provide indemnification only to the extent
permitted in accordance with Sections C and D below.
4.03. The first sentence of Article VII, Section B, of the Amended
and Restated Articles of Incorporation of Acquiror shall be amended to read in
its entirety as follows:
Subject to the limitations and other provisions of Sections C and D
below (including without limitation any personal liability arising out
of a breach of a fiduciary duty under Section 314 of the Small
Business Investment Act), 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.
4.04. The following text shall be inserted immediately after Article
VII, Section C, of the Amended and Restated Articles of Incorporation of
Acquiror and shall comprise in its entirety and be designated as Article VII,
Section D:
SEC LIMITATIONS. Notwithstanding any other provisions herein, the
rights of the directors and officers of the Corporation under this
Article VII shall also be subject
- 3 -
4
to the limitations imposed by the Investment Company Act of 1940, as
amended, and any valid rule, regulation, or order of the Securities
and Exchange Commission thereunder, in each case as now or hereafter
in force.
ARTICLE V.
CAPITALIZATION
5.01. The total number of shares of all classes and the total number
of shares and par value of each class, and the aggregate par value of all the
shares of all classes of which each party to these Articles has the authority
to issue are as follows, immediately before the Merger:
Number Par Value Aggregate
Name Class of Stock of Shares per Share Par Value
---- -------------- --------- --------- ---------
Acquiror Common Stock 19,800,000 $ 0.0001 $ 1,980
Acquiror Preferred Stock 200,000 $100.00 $20,000,000
---------- ----------
Acquiror TOTAL All Classes 20,000,000 $20,001,980
Acquiree Common Stock 100 $ 1.00 $ 100
Acquiree Preferred Stock 200,000 $100.00 $20,000,000
------- ----------
Acquiree TOTAL All Classes 200,100 $20,000,100
ARTICLE VI.
MANNER OF EFFECTUATING THE MERGER AND CONVERTING OR EXCHANGING STOCK
6.01. The manner and basis of converting or exchanging issued stock
of the merging corporations into different stock of a corporation or for other
consideration and the treatment of any issued stock of the merging corporations
not to be converted or exchanged are as follows:
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, the shares of common stock of
Acquiree ("Acquiree Common Shares") issued and outstanding immediately prior to
the Effective Time shall be converted into the right to receive, in the
aggregate, cash in the amount of $0.05 (the "Consideration"), without interest,
payable in full within one business day after the date when such holder
satisfies the procedures set forth in subsection (b) of this Section 6.01.
Following the Effective Time, all certificates or other instruments
representing Acquiree Common Shares outstanding immediately prior to the Merger
shall thereafter only represent the right to receive, upon surrender thereof,
the Consideration. At the Effective Time, each of the Acquiree Common Shares
outstanding immediately prior to the Effective Time (all of which shares will
be converted into the right to receive the Consideration) shall be canceled and
retired and shall cease to exist.
- 4 -
5
(b) At the Effective Time, each of the shares of common stock of
Acquiror issued and outstanding immediately prior to the Effective Time, shall
constitute and remain an identical outstanding share of the Surviving Company,
without any action on the part of the holder thereof.
6.02. After the Effective Time, the holder of the outstanding
certificates theretofore representing Acquiree Common Shares may surrender the
same to the Surviving Company or an agent appointed by it. Upon such
surrender, such holder shall be entitled to receive in exchange the
Consideration.
ARTICLE VII.
EFFECTIVE TIME OF MERGER
7.01. The Merger shall become effective as of 3:00 p.m. Eastern
Standard Time on December 31, 1997 (the "Effective Time").
* * *
[Signatures on following page.]
- 5 -
6
IN WITNESS WHEREOF, each of ALLIED CAPITAL FINANCIAL CORPORATION and
ALLIED FINANCIAL CORPORATION II has caused these presents to be signed in its
name and on its behalf, on December 31, 1997, by its Chairman of the Board and
Chief Executive Officer who acknowledges these Articles of Merger to be the
corporate act of said corporation and hereby certifies that to the best of his
knowledge, information and belief the matters and facts set forth herein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
WITNESS: ALLIED CAPITAL FINANCIAL CORPORATION
(a Maryland corporation)
/s/ Xxxxxx Benz Xxxxxxx
------------------------
Xxxxxx Benz Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Secretary Xxxxxxx X. Xxxxxx
Chairman of the Board and Chief Executive
Officer
WITNESS: ALLIED FINANCIAL CORPORATION II
(a Maryland corporation)
/s/ Xxxxxx Benz Xxxxxxx
------------------------
Xxxxxx Benz Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Secretary Xxxxxxx X. Xxxxxx
Chairman of the Board and Chief Executive
Officer
- 6 -
