CERTIFICATE OF
AMENDMENT TO ARTICLES OF INCORPORATION
BY DIRECTORS OF
PROVIDENT BANCORP, INC.
Allen L. Davis, who is the President of Provident Bancorp,
Inc., an Ohio corporation (the "Corporation"), and Mark E. Magee,
who is the Secretary of the Corporation, do hereby certify that
at a meeting of the Board of Directors of the Corporation held on
December 21, 1995, the following resolution was adopted pursuant
to Section 1701.70(B)(1) of the Ohio Revised Code:
RESOLVED: That pursuant to the authority vested in the
Board of Directors of the Corporation in accordance
with Article Fourth of the Articles of Incorporation, a
series of Preferred Stock of the Corporation to be
designated as the "Series D Non-Voting Convertible
Preferred Stock" be, and it hereby is, created, and
that the designation and amount thereof and the
preferences and other special rights of the shares of
such series, and qualifications, limitations or
restrictions thereof are as delineated on Exhibit A
attached hereto and made a part hereof.
IN WITNESS WHEREOF, the above named officers, acting for and
on behalf of the Corporation, have hereunto subscribed their
names as of this 22nd day of December, 1995.
PROVIDENT BANCORP, INC.
BY:
Allen L. Davis
President
BY:
Mark E. Magee
Secretary
EXHIBIT A
PROVIDENT BANCORP, INC.
SERIES D NON-VOTING CONVERTIBLE PREFERRED STOCK
Section 1 - Designation of Series and Number of Shares.
The shares of such series of Preferred Stock shall be
designated "Series D Non-voting Convertible Preferred Stock"
(hereinafter referred to as the "Series D Preferred Stock"), and
the number of shares which shall constitute such series shall be
not more than 371,418 shares, $1 par value, which number may be
decreased (but not below the number thereof then outstanding)
from time to time by the Board of Directors.
Section 2 - Dividends.
(A) Dividends shall be paid on outstanding shares of
Series D Preferred Stock if, as and when dividends are paid on
Common Stock of the Corporation at a dividend rate per share of
Series D Preferred Stock equal to the product of (x) the number
of shares of Common Stock of the Corporation into which each
share of Series D Preferred Stock is convertible, and (y) the
dividend paid by the Corporation on each share of its outstanding
Common Stock. "Common Stock" shall have the definition set forth
in Section 6(I) hereof.
(B) As used in this Section 2, the word "dividends"
shall not include dividends payable solely in shares of its
capital stock (whether shares of Common Stock or of capital stock
of any other class) of the Corporation (if, but only if, an
adjustment to the Conversion Price is made with respect to such
dividend pursuant to Section 6(A) hereof) but shall include
warrants or rights to subscribe for or to purchase any security
of the Corporation and any other distribution made to holders of
the Corporation's Common Stock.
Section 3 - Liquidation Preference.
(A) The Series D Preferred Stock shall be preferred
over the Common Stock or any other class or series of stock
ranking junior to the Series D Preferred Stock as to distribution
of assets in the event of any liquidation or dissolution or
winding up of the Corporation and, in any such event, the holders
of the Series D Preferred Stock shall be entitled to receive,
after payment or provision for payment of the debts and other
liabilities of the Corporation, out of the assets of the
Corporation available for distribution to its shareholders,
$100.00 per share, and no more, together with an amount equal to
all dividends accrued and unpaid thereon to the date of final
distribution, for each share of the Series D Preferred Stock held
by them before any distribution of the assets shall be made to
the holders of the Common Stock or any other class or series of
stock ranking junior to the Series D Preferred Stock as to
distribution of assets. Upon any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made
in full on the Series D Preferred Stock as provided in the
preceding sentence, but not prior thereto, the Common Stock or
any other series or class of stock ranking junior to the Series D
Preferred Stock as to distribution of assets shall, subject to
the respective terms and provisions, if any, applying thereto, be
entitled to receive any and all assets remaining to be paid or
distributed and the Series D Preferred Stock shall not be
entitled
to share therein.
(B) If, upon any liquidation or dissolution or winding
up of the Corporation, the amounts payable on or with respect to
the Series D Preferred Stock are not paid in full, the holders of
shares of the Series D Preferred Stock, together with all classes
or series of stock ranking on a parity with the Series D
Preferred Stock as to distribution of assets, shall share ratably
in any distribution of assets according to the respective amounts
which would be payable in respect of the shares held by them upon
such distribution if all amounts payable on or with respect to
the Series D Preferred Stock and any other class or series of
stock that so ranks on a parity with the Series D Preferred Stock
were paid in full.
(C) Neither the merger or consolidation of the
Corporation with or into another corporation nor the sale, lease
or other transfer of all or substantially all of the assets of
the Corporation shall be deemed to be a liquidation or
dissolution or winding up of the Corporation.
(D) Written notice of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, stating the payment date and the place where the
distributable amount shall be payable and containing a statement
of the conversion right set forth hereinafter, shall be given by
mail, not less than thirty (30) days prior to the payment date
stated herein, to the holders of record of the Series D Preferred
Stock at their respective addresses as the same shall then appear
on the books of the Corporation.
Section 4 - Automatic Conversion Upon Certain Transfers.
Any shares of Series D Preferred Stock that are transferred
to any person, other than Great American Insurance Company, Great
American Life Insurance Company or any of their respective
affiliates ("Original Holders"), shall upon such transfer be
automatically converted into Common Stock at the Conversion Price
in effect on the date of such transfer. For purposes of this
provision, an "affiliate" of any person is another person
controlling, controlled by or under common control with such
person.
Section 5 - No Redemption.
The Corporation shall have no right to redeem any shares of
Series D Preferred Stock at any time.
Section 6 - Conversion.
Shares of Series D Preferred Stock may be converted at any
time and from time to time at the option of the holder thereof
into fully paid and nonassessable shares of Common Stock of the
Corporation at the rate of 6.25 shares of Common Stock as
constituted on December 21, 1995 for each share of Series D
Preferred Stock surrendered for conversion. The conversion rate
expressed may also be expressed as a conversion price of $16.00
(the "Conversion Price") based on a liquidation value of each
share of Series D Preferred Stock of $100.00.
(A) The Conversion Price shall be subject to
adjustment from time to time in case the Corporation shall (a)
pay a dividend, or make a distribution, to all holders of its
Common Stock in shares of its capital stock (whether shares of
Common Stock or of capital stock of any other class) (b)
subdivide its outstanding shares of Common Stock into a greater
number of shares, (c) combine its outstanding shares of Common
Stock into a smaller number of shares, or (d) issue by
reclassification of its shares of Common Stock any securities,
in which case the Conversion Price and terms of conversion in
effect immediately prior to such action shall be adjusted so that
the holder of any share of Series D Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the kind
and number of shares of Common Stock or other securities of the
Corporation which such holder would have owned or been entitled
to receive immediately following such action had such share of
Series D Preferred Stock been converted immediately prior
thereto. An adjustment made pursuant to this Section 6(A) shall
become effective immediately after the record date in the case of
a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision,
combination or reclassification.
All calculations under this Section 6 shall be
rounded to the nearest cent or to the nearest one hundredth of a
share, as the case may be.
Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall mail a copy of a statement
setting forth the adjusted Conversion Price determined as
provided herein and setting forth the method of calculation and
the facts requiring such adjustment and upon which such
calculation is based to each person who is a registered holder of
Series D Preferred Stock at such person's last address as the
same appears on the books of the Corporation. Each adjustment
shall remain in effect until a subsequent adjustment is required
hereunder.
(B) If, at any time while shares of Series D Preferred
Stock are outstanding, the Corporation shall (i) declare a
dividend (or any other distribution) on its Common Stock, other
than in cash out of current or retained earnings, or (ii)
reclassify its Common Stock (other than through a subdivision or
combination thereof) or become a party to any consolidation or
merger for which approval of the holders of its stock is
required, or sell or transfer all or substantially all of the
assets of the Corporation, then the Corporation shall cause to be
mailed to registered holders of Series D Preferred Stock, at
their last addresses as they shall appear on the books of the
Corporation at least twenty days prior to the applicable record
date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend or
distribution, or if a record is not to be taken, the date as of
which holders of Common Stock of record to be entitled to such
dividend or distribution are to be determined, or (y) the date on
which any such reclassification, consolidation, merger, sale or
transfer is expected to become effective, and the date as of
which it is expected that holders of record of Common Stock shall
be entitled to exchange their Common Stock for securities or
other property, if any, deliverable upon such reclassification,
consolidation, merger, sale or transfer. Failure to give or
receive the notice required by this Section 6(B) or any defect
therein shall not affect the legality or validity of any such
dividend, distribution, reclassification, consolidation, merger,
sale, transfer or other action.
(C) In case of a merger or consolidation of the
Corporation with or into another corporation, or the sale of the
Corporation's property or assets as, or substantially as, an
entirety, to another corporation, or the reclassification of the
Common Stock (other than through a subdivision or combination
thereof, or change in par value), holders of shares of Series
D Preferred Stock shall thereafter have the right to convert
each of such shares into the kind and amount of shares of
stock and other securities and property receivable upon such
merger, consolidation, sale or reclassification by a holder of
the number of shares of Common stock (whether whole or
fractional) into which such shares of Series D Preferred Stock
might have been converted immediately prior to such a merger,
consolidation, sale or reclassification, and shall have no other
conversion rights under these provisions; and effective
provision shall be made in the charter of the resulting or
surviving corporation or otherwise, so that the provisions set
forth herein for the protection of conversionrights of Series
D Preferred Stock shall thereafter be applicable, as nearly
as reasonably may be, to any other shares of stock and other
securities and property deliverable uponconversion of Series D
Preferred Stock remaining outstanding or other convertible
preferred stock received in place thereof. Any such resulting
or surviving corporation shall expressly assume the obligation
to deliver, upon the exercise of the conversion right, such
shares, securities or property as holders of Series D Preferred
Stock remaining outstanding, or other convertible preferred
stock received by such holders in place thereof, shall be
entitled to receive pursuant to the provisions hereof, and to
make provision for protection of conversion rights as above
provided.
(D) The holder of any shares of Series D Preferred
Stock may exercise its option to convert such shares into shares
of Common Stock only by surrendering for such purpose to the
Corporation at its principal office the certificates representing
the shares to be converted, accompanied by written notice that
such holder elects to convert such shares in accordance with the
provisions of this Section 6. Said notice shall also state the
name or names (with addresses) in which the certificate or
certificates for shares of Common Stock which shall be
issuable on conversion are to be issued. Each certificate or
certificates surrendered for conversion shall, unless the shares
issuable on conversion are to be issued in the same name as that
in which such certificate or certificates are registered, be
accompanied by instruments of transfer, in form reasonably
satisfactory to the Corporation, duly executed by the holder or
its duly authorized attorney. Each conversion shall be deemed to
have been effected on the date on which such certificate or
certificates shall have been surrendered and such notice received
by the Corporation as aforesaid, and the person or person in
whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder or holders of
record of the shares represented thereby notwithstanding that the
transfer books of the Corporation may then be closed or that
certificates representing such shares of Common Stock shall not
then be actually delivered to such person. As promptly as
practicable on or after the conversion date, the Corporation
shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates representing the
number of full shares of Common Stock issuable upon such
conversion.
(E) In connection with the conversion of shares of
Series D Preferred Stock into Common Stock, no fractional shares
of Series D Preferred Stock or of Common Stock shall be issued,
but the Corporation shall pay a cash adjustment in respect of
such fractional interest, calculated on the market price of the
Common Stock on the date of conversion.
(F) Upon any conversion of shares of Series D
Preferred Stock, no allowance, adjustment or payment shall be
made with respect to accrued but unpaid dividends upon such
Series D Preferred Stock or with respect to dividends on the
Common Stock to be issued upon conversion.
(G) The issuance of stock certificates on conversions
of shares of Series D Preferred Stock shall be made without
charge to converting shareholders for any tax in respect of the
issuance thereof. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any
registration of transfer involved in the issue and delivery of
stock in any name other than that of the holder of the shares of
Series D Preferred Stock converted, and the Corporation shall not
be required to so issue or deliver any stock certificate unless
and until the person or persons requesting the registration of
transfer shall have paid to the Corporation the amount of such
tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
(H) The Corporation shall at all times reserve and
keep available out of its authorized Common Stock the full number
of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Series D Preferred Stock.
(I) Any shares of Series D Preferred Stock converted
shall be retired and shall assume the status of authorized and
unissued Preferred Stock, undesignated as to series, subject to
reissuance by the Corporation as shares of Preferred Stock of one
or more series, as may be determined from time to time by the
Board of Directors, but such shares shall not be reissued as
Series D Preferred Stock.
(J) For purposes of this Section 6:
(i) "Common Stock" shall mean (a) the
Corporation's Common Stock, without par value, or (b)
any other class of stock resulting from successive
changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par
value to no par value, or from no par value to par
value; provided, however, that in the event that at any
time as a result of an adjustment made pursuant to
Section 6(A) above, the holder of any share of Series D
Preferred Stock thereafter surrendered for conversion
would become entitled to receive any stock of the
Corporation other than shares of its Common Stock,
thereafter the conversion rate and price with respect
to such other shares so receivable upon conversion of
any share of Series D Preferred Stock shall be subject
to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in
this Section 6.
Section 7 - Voting Rights.
(A) The holders of the Series D Preferred Stock shall
not be entitled to vote except as provided in this Section 7 and
as otherwise provided by law.
(B) So long as any shares of Series D Preferred Stock
are outstanding, the Corporation shall not, in any manner,
whether by amendment to its Articles of Incorporation or Code of
Regulations, by merger (whether or not the Corporation is the
surviving corporation in such merger), by consolidation, or
otherwise, without the written consent of the affirmative vote
at a meeting called for that purpose of the holders of at least
two-thirds of the votes of the shares of Series D Preferred
Stock then outstanding, voting separately as a class, (i) amend,
alter or repeal any of the provisions of any resolution or
resolutions establishing the Series D Preferred Stock so as to
affect adversely the powers, preferences or special rights of
such Series D Preferred Stock or (ii) authorize the issuance of,
or authorize any obligation or security convertible into,
exchangeable for or evidencing the right to purchase shares
of, any additional class or series of stock ranking prior to
the Series D Preferred Stock in the payment of dividends or the
preferential distribution of assets.
(C) Nothing in this Section 7 shall be deemed to
require any vote or consent of the holders of shares of Series D
Preferred Stock in connection with the authorization or issuance
of any series of Preferred Stock ranking on a parity with or
junior to the Series D Preferred Stock as to dividends and/or
distribution of assets.
Section 8 - Restrictions on Transfer.
The Original Holders of the Series D Preferred Stock shall
be entitled to transfer ownership of their shares only as
follows:
(A) in a widely dispersed public offering;
(B) in sales pursuant to Rule 144 of the Securities
Act of 1933 or rules of similar import;
(C) in sales pursuant to Rule 144A of the Securities
Act of 1933, or in any other private sale in which no single
purchaser acquires more than 2% of the voting shares of the
Corporation; or
(D) to the Corporation, to a third party that has
acquired a majority of the shares of the Corporation or to any
other Original Holder.
Section 9 - Reports.
So long as any shares of the Series D Preferred Stock shall
be outstanding, the Corporation shall provide to each holder of
such shares a copy of the annual report to shareholders
distributed pursuant to Rule 14a-3 of the Securities Exchange Act
of 1934.