EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION OF THE COMPANY, AS AMENDED
THE STATE OF OHIO
BOB TAFT
SECRETARY OF STATE
584370
CERTIFICATE
It is hereby certified that the Secretary of State of Ohio has
custody of the Records of Incorporation and Miscellaneous
Filings; that said records show the filing and recording of:
AMD MIS INC of: MID AM, INC.
Recorded on Roll H701 at Frame 1547 of the Records of
Incorporation and Miscellaneous Filings.
Witness my hand and the seal of the Secretary of State at
Columbus, Ohio, this 8th day of Oct., A.D. 1993.
/s/ Bob Taft
Bob Taft
Secretary of State
United State of America, State of Ohio,
Office of the Secretary of State
The Seal of Ohio
<PAGE 2>
CERTIFICATE OF AMENDMENT OF
AMENDED ARTICLES OF INCORPORATION OF MID AM, INC.
David R. Francisco, President and Chief Operating Officer, and W.
Granger Souder, Senior Vice President/General Counsel and
Secretary of Mid Am, Inc., an Ohio corporation, with its
principal office located in the City of Bowling Green, Wood
County, Ohio, do hereby certify that (i) a special meeting of the
holders of shares of said corporation entitling them to vote on
the proposal to amend the Amended Articles of Incorporation of
the corporation was duly called for such purpose and held on
October 5, 1993; (ii) the holders of more than a majority of the
outstanding shares of the corporation so entitled to vote were
present in person or by proxy; and (iii) by affirmative vote of
the holders of shares entitling them to exercise more than a
majority of the voting power of the corporation on such proposal,
as required by Article FIFTH, subpart (iv), the following
resolutions were adopted:
RESOLVED, that the first sentence of the first paragraph of
Article FOURTH of the Amended Articles of Incorporation of this
corporation is hereby amended so as to read as follows:
FOURTH: The number of shares which the Corporation is
authorized to have outstanding is thirty seven million
(37,000,000), of which thirty five million (35,000,000) are
common shares without par value ("Common Shares") and two million
(2,000,000) are preferred shares without par value ("Preferred
Shares").
RESOLVED FURTHER, that the proper officers of the corporation
be, and they hereby are, authorized and directed to subscribe and
file a Certificate of Amendment in accordance with the foregoing
resolution with the office of the Secretary of State of the State
of Ohio and to do or cause to be done all such further acts and
things as may be necessary and proper in connection therewith.
IN WITNESS WHEREOF, David R. Francisco, President and Chief
Operating Officer, and W. Granger Souder, Senior Vice President/
General Counsel and Secretary of Mid Am, Inc., acting for and on
behalf of said corporation, have hereunto subscribed their names
this 7th day of October, 1993.
MID AM, INC.
By /s/ David R. Francisco
David R. Francisco, President and Chief Operating Officer
By /s/ W. Granger Souder
W. Granger Souder, Senior Vice President/General Counsel/
Secretary
<PAGE 3>
CERTIFICATE OF AMENDMENT OF
AMENDED ARTICLES OF INCORPORATION OF MID AM, INC.
Jeffery S. Schatz, Senior Vice President/Funds Management, and W.
Granger Souder, Senior Vice President/General Counsel and
Secretary of Mid Am, Inc., an Ohio Corporation (the
"Corporation") do hereby certify that:
1. (i) In accordance with Section 1701.70 of the Ohio Revised
Code which provides that directors may adopt amendments to the
articles in respect of any unissued shares of any class to the
extent authorized by the articles; (ii) the Amended Articles of
the Corporation provide in Article Fourth, Division 1 that the
directors may adopt amendments to the Articles of Incorporation
fixing the series terms of a series of the Corporation's
preferred shares without par value; (iii) such authority of the
Board of Directors was duly delegated to the Offering Committee
of the Board of Directors by an action of the Board of Directors
of the Corporation; and (iv) the following resolutions were
adopted by the Offering Committee of the Board of Directors:
RESOLVED, that the Series Amendment to the Amended Articles of
Incorporation of the Corporation, attached hereto as Exhibit A,
which includes the final terms of the Preferred Stock, including
the redemption terms, the dividend and conversion rates and
liquidation price, be and hereby is approved.
FURTHER RESOLVED, that the executive officers of the
Corporation and, each of them, be and hereby are authorized to
execute and file with the Secretary of State of Ohio a
Certificate of Amendment of the Amended Articles of Incorporation
of the Corporation.
2. Attached hereto as Exhibit A is a true, correct and complete
copy of the Exhibit A referred to in the foregoing resolutions.
IN WITNESS WHEREOF, the above named officers, acting for and
on behalf of the Corporation, hereunto have subscribed their
names as of this 5th day of June, 1992.
/s/ Jeffery S. Schatz
Jeffery S. Schatz
Senior Vice President/Funds Management
/s/ W. Granger Souder
W. Granger Souder
Senior Vice President/General Counsel and Secretary
<PAGE 4>
Exhibit A.
Article Fourth, Division 1 of the Amended Articles of
Incorporation, of Mid Am, Inc. is hereby amended by the insertion
of paragraph G immediately following paragraph F as follows:
(G) Series A Preferred Shares. There is hereby established a
series of the preferred shares of the Corporation to which the
following provisions shall be applicable:
1. Designation and number. The series shall be designated
"$1.8125 Cumulative Convertible Preferred Stock, Series A" (the
"Series A Preferred Stock"). The number of shares of Series A
Preferred Stock shall be up to 1,610,000.
2. Dividends. (a) The holders of record of Series A
Preferred Stock , on such respective dates as shall be determined
by the Board of Directors in advance of the payment of each
dividend provided for herein, shall be entitled to receive, as
and when declared by the Board of Directors and out of assets of
the Corporation which are by law available for the payment of
dividends, at the rate of $1.8125 per share per annum payable
March 1, June 1, September 1, and December 1 of each year,
commencing on September 1, 1992 (each such day a "dividend date"
and each quarterly period ending on a dividend date a "dividend
period"), which dividends shall accrue from June 12, 1992. Each
such dividend shall be payable to the holders of record as they
appear on the stock books of the Corporation on such record
dates, not exceeding 60 days preceding the payment dates thereof,
as shall be fixed by the Board of Directors of the Corporation.
(b) Dividends on the Series A Preferred Stock shall be
cumulative, whether or not in any dividend period or periods
there shall be surplus or net profits of the Corporation legally
available for the payment of such dividends.
(c) Accumulations of dividends on any shares of Series A
Preferred Stock shall not bear interest.
(d) Dividends payable on the Series A Preferred Stock for
any period greater or less than a full dividend period shall be
computed on the basis of a 360 day year consisting of twelve 30
day months. Dividends payable on the Series A Preferred Stock
for each full dividend period shall be computed by dividing the
annual dividend rate by four.
3. Liquidation Preference. The amount which the holders
of Series A Preferred Stock shall be entitled to receive in the
event of any liquidation, dissolution or winding up of the
<PAGE 5>
Corporation, whether voluntary or involuntary, shall be $25.00
per share plus an amount per share equal to all dividends accrued
and unpaid thereon to the date of such liquidation, dissolution
or winding up, and no more. Notwithstanding anything to the
contrary elsewhere in these Articles of Incorporation, the stated
capital of the Corporation in respect of the Series A Preferred
Stock shall be in accordance with Chapter 1701 of the Ohio
Revised Code.
4. Redemption. (a) The shares of Series A Preferred
Stock shall be redeemable at the option of the Corporation in
whole or in part, at any time or from time to time, on or after
June 12, 1997, on not less than 30 nor more than 60 days notice
by mail, at a redemption price of $25.00 per share plus accrued
and unpaid dividends to the redemption date.
(b) Any notice of redemption mailed to a holder of Series
A Preferred Stock at his address as the same appears on the books
of the Corporation shall be conclusively presumed to have been
given whether or not the holder receives the notice. Each such
notice shall state the redemption date; the number of shares of
Series A Preferred Stock to be redeemed, and, if less than all
shares of Series A Preferred Stock held by such holder are to be
redeemed, the number of such shares to be redeemed from such
holder and the fact that a new certificate or certificates
representing any unredeemed shares shall be issued without cost
to such holder; the redemption price applicable to the shares to
be redeemed; the place or places where such shares are to be
surrendered; and that dividends on shares to be redeemed shall
cease to accrue and accumulate on the redemption date. No defect
in any such notice as to any shares of Series A Preferred Stock
shall affect the validity of the proceedings for the redemption
of any other shares of Series A Preferred Stock.
(c) Any shares of Series A Preferred Stock called for
redemption pursuant to this subparagraph 4 shall not be deemed to
be outstanding for the purposes of voting, determining the total
number of shares entitled to vote, or payment of dividends
thereon on or after the date on which the notice of redemption is
mailed to the holders thereof and a sum sufficient to redeem such
shares has been set apart for payment of the redemption price
upon surrender of the certificates therefor. Any money set apart
for such payment which is not required to redeem such shares
because of conversions shall be promptly returned to the
Corporation. In addition, any money set apart for such payment
which remains unclaimed for a period of six years after the
redemption date shall be repaid to the Corporation upon the
request of the Corporation as expressed by a resolution of the
Board of Directors. The holders of record of the shares so
called for redemption who have not made a claim against such
<PAGE 6>
moneys prior to such repayment to the Corporation shall be deemed
to be unsecured creditors of the Corporation for an amount
equivalent to the amount set apart for payment of the redemption
price and so repaid to the Corporation, but in no event shall any
such holder be entitled to receive any interest thereon. The
Corporation shall be entitled to receive any interest paid from
time to time on the money so set apart.
5. Conversion. (a) At the option of each of the holders
of outstanding Series A Preferred Stock, such stock may be
converted into the fully paid and nonassessable Common Stock as
provided for in this subparagraph 5.
(b) The Series A Preferred Stock may be converted into
Common Stock at the conversion rate in effect at the conversion
date as defined below. The initial "conversion rate" shall be
1.11111 shares of Common Stock for each share of Series A
Preferred Stock converted, subject, however, to adjustment from
time to time as provided elsewhere in this subparagraph 5. For
purposes of such conversion, each share of Series A Preferred
Stock will be valued at $25.00.
(c) Upon conversion of the Series A Preferred Stock, (i)
no payment shall be made on account of any accrued and unpaid
dividends on such Series A Preferred Stock to the conversion
date, and (ii) no adjustment in the conversion rate will be made
on account of any such dividends. Notwithstanding the foregoing,
if any share of Series A Preferred Stock is converted after any
record date for the payment of a dividend on the Series A
Preferred Stock but before the due date for payment therefor,
then (i) such dividend shall be payable on such due date to the
record holder of such share on such record date, and (ii) such
share, when surrendered for conversion, shall be accompanied by
payment of an amount equal to the dividend payable on such due
date on such share (unless such share has been called for
redemption prior to the due date for payment therefor).
(d) Any Series A Preferred Stock which has been called for
redemption pursuant to subparagraph 4 hereof may nevertheless be
converted by the holder thereof at any time prior to the close of
business on the tenth day preceding the date fixed for the
redemption of such Series A Preferred Stock.
(e) In the event the Corporation (i) issues any Common
Stock as a dividend with respect to the outstanding Common Stock
or any other common capital stock as a class or (ii) subdivides
or combines the outstanding Common Stock, then the conversion
rate in effect at the date of such event shall be adjusted by
multiplying such conversion rate by the quotient of (a) the
number of shares of Common Stock outstanding immediately after
<PAGE 7>
such event, divided by (b) the number of such shares outstanding
immediately before such event. As used in this subparagraph 5,
the term "common capital stock" means any class of capital stock
of the Corporation ranking substantially on a parity with the
Common Stock with respect to either preference upon liquidation
or payment of dividends. Each adjustment in the conversion rate
pursuant to this subsection shall become effective as of either
(i) the record date for the payment of such dividend, or (ii) the
effective date of any such subdivision or combination.
(f) In the event that the Corporation distributes with
respect to the outstanding Common Stock or any other common
capital stock as a class any rights or warrants to purchase
Common Stock at a price per share which is less than the current
market price per share of the Common Stock determined as provided
for in subparagraph 5(1) hereof at the record date fixed for
determination of the stockholders entitled to receive such
distribution, then the conversion rate shall be adjusted by
multiplying the conversion rate by the quotient of (i) the sum of
(a) the number of shares of Common Stock outstanding as of such
record date, plus (b) the maximum number of shares of Common
Stock issuable upon the full exercise of such rights or warrants,
divided by (ii) the sum of (a) the number of shares of Common
Stock issuable upon the full exercise of such rights or warrants,
multiplied by (y) the quotient of the minimum exercise price of
such rights or warranties, divided by such current market price
at such record date. If the Corporation shall, by dividend or
otherwise, distribute to all holders of Common Stock evidences of
its indebtedness or assets (including securities, but excluding
any rights or warrants referred to above, any dividend or
distribution paid in cash out of retained earnings of the
Corporation and any dividend or distribution referred to in
subparagraph 5(e) hereof), the conversion rate shall be adjusted
so that the same shall equal the rate determined by multiplying
the conversion rate in effect immediately prior to the close of
business on the record date fixed for the determination of
shareholders entitled to receive such distribution by a fraction
the denominator of which shall be the current market price per
share (determined as provided in subparagraph 5(1) hereof) of the
Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) of the portion of the
assets or evidence of indebtedness so distributed applicable to
one share of Common Stock and the numerator of which shall be the
current market price per share of the Common Stock. Each
adjustment in the conversion rate pursuant to this subparagraph
5(f) shall become effective as of the record date fixed for
determination of the shareholders entitled to receive such
distribution.
<PAGE 8>
(g) The conversion rate shall not be adjusted if there is
a reclassification. As used in this subparagraph 5, the term
"reclassification" means that the Common Stock is changed into
the same or a different number or amount of shares of capital
stock, other securities, cash or other property of the
Corporation by reclassification or other capital reorganization
other than a share dividend, a subdivision or combination, or a
reorganization all as provided for elsewhere in this
subparagraph 5. However, in the event of any reclassification,
the Series A Preferred Stock shall become convertible into the
same number or amount of shares of capital stock, other
securities, cash or other property which would have been
issuable, deliverable or payable on account of the Common Stock
issued upon the conversion of the Series A Preferred Stock
assuming such stock had been converted immediately prior to such
reclassification. Each change in convertibility pursuant to this
subparagraph 5(g) shall become effective as of the effective date
of such reclassification. After any such reclassification, the
conversion privilege shall remain subject to adjustment on terms
comparable (as determined by the Board of Directors, whose
determination shall be conclusive) to those applicable to the
Common Stock as provided herein.
(h) The conversion rate shall not be adjusted pursuant to
this subparagraph 5 if there is a reorganization. As used in
this subparagraph 5 the term "reorganization" means (i) the
merger or consolidation of the Corporation with or into any other
corporation or (ii) the sale or exchange of substantially all of
the assets of the Corporation as an entirety to any other
corporation or other entity. However, in the event of a
reorganization, the Series A Preferred Stock shall become
convertible into the same number or amount of shares of stock,
other securities, cash or other property of the corporation or
other entity surviving or resulting from the reorganization which
would have been issuable, deliverable or payable on account of
the Common Stock issued upon conversion of the Series A Preferred
Stock, assuming such stock had been converted immediately prior
to such reorganization. In addition, after a reorganization, the
provisions of this subparagraph 5 shall be appropriately
applicable in a manner as nearly equivalent as practicable to the
manner in which such provisions applied prior to such
reorganization. Each change in convertibility pursuant to this
subparagraph 5(h) shall become effective as of the effective date
of each such reorganization. After any such reorganization, the
conversion privilege shall remain subject to adjustment on terms
comparable (as determined by the Board of Directors, whose
determination shall be conclusive) to those applicable to the
Common Stock as provided herein.
<PAGE 9>
(i) The Corporation may make such adjustments in the
conversion rate, in addition to those expressly required above,
as it considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients. No adjustment in
the conversion rate shall be required pursuant to subparagraph 5
hereof unless such adjustment would require an increase or
decrease in the conversion rate in effect immediately prior to
such adjustment event of at least 1 percent of one share of
Common Stock. However, any such adjustments which are not so
required to be made at the time shall be carried forward and
taken into account in determining any subsequent adjustment
pursuant to this subparagraph 5.
(j) Each time (i) the conversion rate is adjusted or (ii)
there is a reclassification or a reorganization which changes the
convertibility of the Series A Preferred Stock, the Corporation
shall furnish to each holder of the Series A Preferred Stock a
certificate specifying such adjustment or change and describing
the circumstances of such adjustment or change.
(k) The Series A Preferred Stock may be converted by (i)
surrendering the certificates representing the shares of such
Series A Preferred Stock, together with (ii) written notice of
conversion, and (iii) a proper assignment of such certificates to
the Corporation or in blank. The notice of conversion shall
state the names and addresses in which the certificates
representing the Common Stock issuable upon such conversion shall
be issued. The date upon which the certificates representing the
shares to be converted, notice of conversion and assignment are
received by the transfer agent is referred to herein as the
"conversion date." A promptly as practicable after the
conversion date, the Corporation shall issue and deliver, as
specified in the notice of conversion, certificates for the
number of full shares of Common Stock (or other shares of capital
stock, other securities, cash or other property) issuable upon
such conversion, together with any cash instead of fractional
shares as provided in subparagraph 5(1) hereof. Such conversion
shall be deemed to have been effected immediately prior to the
close of business on the conversion date, and at such time the
rights of the holder as a holder of the converted shares of the
Series A Preferred Stock shall cease and the person or persons 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 the holder or holders of record of the
shares of Common Stock represented thereby.
(l) No fractional shares of Common Stock (or other shares
of stock or other securities) or scrip representing fractional
shares shall be issued upon conversion of the Series A Preferred
<PAGE 10>
Stock. Instead, the Corporation shall pay a cash adjustment in
an amount equal to the same fraction of the current market price
per share of the Common Stock (or other shares of capital stock
or other securities) at the conversion date. As used in this
subparagraph 5, the term "current market price" at any time means
the daily average closing price for a period of thirty business
days ending on the business day before the date for which such
price is to be determined. The closing price for each business
day means (i) if the Common Stock is then listed on a national
securities exchange, the last reported closing sales price of the
Common Stock on such exchange which shall be for consolidated
trading if applicable to such exchange, or (ii) if the Common
Stock is not then listed on a national securities exchange but is
quoted on the NASDAQ National Market System, the last reported
closing sales price of the Common Stock on such system. If, for
any reason, such closing prices cannot reasonably be determined,
then the "current market price" will be determined by any
reasonable method selected by the Board of Directors of the
Corporation.
(m) In the event some but not all of the shares of the
Series A Preferred Stock represented by certificates surrendered
by a holder are converted, the Corporation shall execute and
deliver to or on the order of the holder, at the expense of the
Corporation, a new certificate representing the number of shares
of Series A Preferred Stock which were not converted.
(n) The Corporation shall at all times reserve and keep
available and free of preemptive rights out of its authorized but
unissued shares of Common Stock, solely for the purpose of
affecting the conversion of the Series A Preferred Stock, such
number of its shares of Common Stock (or other shares of capital
stock or other securities) as shall from time to time be
sufficient to affect the conversion of all outstanding shares of
the Series A Preferred Stock, and if at any time the number of
authorized but unissued shares of Common Stock (or other shares
of capital stock or other securities) shall not be sufficient to
effect the conversion of all then outstanding shares of the
Series A Preferred Stock, the Corporation will take such
corporate action as may be necessary to increase its authorized
but unissued shares of Common Stock (or other shares of capital
stock or other securities) to such number of shares as shall be
sufficient for such purpose.
(o) The Corporation shall pay all documentary, stamp or
other transaction taxes attributable to the issuance or delivery
of shares of capital stock or other securities of the Corporation
upon conversion of any shares of the Series A Preferred Stock.
However, the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the
<PAGE 11>
issuance or delivery of any certificate for such shares in a name
other than that of the holder of the shares of the Series A
Preferred Stock in respect of which such shares are being issued.
(p) Upon conversion of any shares of Series A Preferred
Stock, the stated capital of the Common Stock (or other shares of
capital stock) issued upon such conversion shall be the aggregate
stated capital, if any, of the shares so issued and the stated
capital of the Corporation shall be correspondingly increased or
decreased to reflect the difference between the stated capital of
the Series A Preferred Stock so converted and the stated capital,
if any, of the shares of Common Stock (or other shares of capital
stock) issued upon conversion.
6. Reacquired Shares. Shares of Series A Preferred Stock
converted, redeemed, or otherwise purchased or acquired by the
Corporation shall be restored to the status of authorized but
unissued shares of Preferred Stock without designation as to
series.
7. No Sinking Fund. The Series A Preferred Stock will not
be subject to any sinking fund or other obligation of the
Corporation to redeem or retire the Series A Preferred Stock.
<PAGE 12>
CERTIFICATE OF AMENDMENT OF RESTATED AND
AMENDED ARTICLES OF INCORPORATION OF MID AM, INC.
Edward J. Reiter, Chairman and Chief Executive Officer, and W.
Granger Souder, Secretary of Mid Am, Inc., an Ohio Corporation
with its principal office located in the City of Bowling Green,
Wood County, Ohio, do hereby certify that (i) the annual meeting
of the holders of shares of said corporation entitling them to
vote on the proposal to amend the Restated and Amended Articles
of Incorporation of the corporation was duly called for such
purpose and held on April 11, 1992; (ii) the holders of more than
a majority of the outstanding shares of the corporation so
entitled to vote were present in person or by proxy; and (iii) by
the affirmative vote of the holders of shares entitling them to
exercise more than two-thirds of the voting power of the
corporation on such proposal, the following resolution was
adopted:
RESOLVED, that the Amended Articles of Incorporation of
Mid Am, Inc., as attached in its entirety, is hereby adopted and
approved, and shall hereinafter supersede the existing Articles
of Incorporation and all amendments thereto and restatements
thereof.
IN WITNESS WHEREOF, Edward J. Reiter, Chairman and CEO, and W.
Granger Souder, Secretary of Mid Am, Inc., acting for and on
behalf of said corporation, have hereunto subscribed their names
this 28th day of April, 1992.
MID AM, INC.
By /s/Edward J. Reiter
Edward J. Reiter, Chairman and CEO
By /s/W. Granger Souder
W. Granger Souder, Secretary
<PAGE 13>
AMENDED ARTICLES OF INCORPORATION
OF
MID AM, INC.
FIRST: The name of the corporation (the "Corporation")
shall be:
Mid Am, Inc.
SECOND: the place in the State of Ohio where the
principal office of the Corporation is to be located is Bowling
Green, Wood County.
THIRD: The purpose for which the Corporation is formed
is to engage in any lawful act or activity for which corporations
may be formed under Sections 1701.01 to 1701.98 inclusive of the
Ohio Revised Code.
FOURTH: The number of shares which the Corporation is
authorized to have outstanding is seventeen million (17,000,000),
of which fifteen million (15,000,000) are common shares without
par value ("Common Shares") and two million (2,000,000) are
preferred shares without par value ("Preferred Shares"). The
express terms of the shares of each class are as follows:
Division 1. EXPRESS TERMS OF THE PREFERRED SHARES.
(A) Board of Directors Authority to Fix Certain Terms.
The Preferred Shares may be issued from time to time in
one or more series. All Preferred Shares shall be of
equal rank and shall be identical, except in respect of
the matters that may be fixed by the Board of
Directors, and each share of each series shall be
identical with all other shares of such series, except
as to the date from which dividends are cumulative.
Subject to the provisions of subsections (A)-(F) of
this Division 1, which provisions shall apply to all
Preferred Shares, the Board of Directors is authorized
to cause such shares to be issued in one or more series
and with respect to each such series, prior to the
issuance thereof, to fix:
(i) The division of such Preferred Shares
into series and the designation and authorized
number of Preferred Shares of each series;
(ii) The dividend or distribution rate;
<PAGE 14>
(iii) The dates of payments of dividends or
distributions, if declared, and the dates from
which they are cumulative;
(iv) The amounts payable in the event of any
voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation;
(v) Redemption rights and price;
(vi) The terms and amounts of any sinking
fund provided for the purchase or redemption of
the Preferred Shares;
(vii) Conversion rights; and
(viii) Restrictions on the issuance of
shares of any class or series.
The Board of Directors is authorized to adopt, from
time to time, amendments to the Articles of
Incorporation fixing, with respect to each such series,
the matters described in this clauses (i) through
(viii) above.
(B) Dividend Preference. The holders of Preferred
Shares of each series, in preference to the holders of
Common Shares and of any other class of shares ranking
junior to the Preferred Shares, shall be entitled to
receive, out of any funds legally available, when and
as declared by the Board of Directors, dividends in
cash at the rate for such series fixed according to the
provisions of subsection (A) of this Division 1 and no
more, payable quarterly on the dates fixed for such
series. Such dividends shall be cumulative, in the
case of shares of each particular series, from and
after the date or dates fixed with respect to such
series. No dividends may be paid upon or declared or
set apart for any of the Preferred Shares for any
quarterly dividend period unless at the same time a
like proportionate dividend for the same quarterly
dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall
be paid upon or declared or set apart for all Preferred
Shares of all series then issued and outstanding and
entitled to receive such dividend.
(C) Restriction on Dividends to Junior Shares. In no
event as long as any Preferred Shares shall be
<PAGE 15>
outstanding shall any dividends, except a dividend
payable in Common Shares or other shares ranking junior
to the Preferred Shares, be paid or declared or any
distribution be made on the Common Shares or any other
shares ranking junior to the Preferred Shares, nor
shall any Common Shares or any other shares ranking
junior to the Preferred Shares be purchased, retired or
otherwise acquired by the Corporation:
(i) Unless all accrued and unpaid dividends
on Preferred Shares, including the full dividends for
the current quarterly dividend period, shall have been
declared and paid or a sum sufficient for payment
thereof set apart; and
(ii) Unless there shall be no arrearage with
respect to the redemption of Preferred Shares of any
series from any sinking fund provided for shares of
such series in accordance with the provisions of clause
(vi) of subsection (A) of this Division 1.
(D) Liquidation Preference.
(i) The holders of Preferred Shares of any series
shall, in case of liquidation, dissolution or winding
up of the affairs of the Corporation, be entitled to
receive in full out of the assets of the Corporation,
including its capital, before any amount shall be paid
or distributed among the holders of the Common Shares
or any other shares ranking junior to the Preferred
Shares, the amounts fixed with respect to shares of
such series in accordance with subsection (A) of this
Division 1, plus in either event an amount equal to all
dividends accrued and unpaid thereof to the date of
payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the
Corporation. In case the net assets of the Corporation
legally available therefor are insufficient to permit
the payment upon all outstanding shares of Preferred
Shares of the full preferential amount to which they
are respectively entitled, then such net assets shall
be distributed ratably upon outstanding Preferred
Shares in proportion to the full preferential amount to
which each such share is entitled;
(ii) After payment to holders of Preferred Shares
of the full preferential amounts, holders of Preferred
Shares as such shall have no right or claim to any of
the remaining assets of the Corporation; and
<PAGE 16>
(iii) The merger or consolidation of the
Corporation into or with any other corporation, or the
merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the
property or business of the Corporation, shall not be
deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this
Division 1.
(E) Voting Rights.
(i) Except as otherwise provided in this
subsection (E), the holders of Preferred Shares shall
not be entitled to vote upon any matters presented to
the shareholders;
(ii) If, and as often as, the Corporation is in
default in the payment of four (4) full quarterly
dividends (whether or not consecutive) on any series of
Preferred Shares at the time outstanding, whether or
not earned or declared, the holders of Preferred Shares
shall be entitled to one vote for each Preferred Share
upon all matters presented to the shareholders; and
provided further that the foregoing special voting
rights when vested shall remain so vested until all
accrued and unpaid dividends on the Preferred Shares of
all series then outstanding shall have been paid,
whereupon the holders of Preferred Shares shall be
divested of their special voting rights, subject to the
revesting of such special voting rights upon the event
specified above;
(iii) The affirmative vote of the holders of at
least two-thirds of the Preferred Shares at the time
outstanding, given in person or by proxy at a meeting
called for the purpose at which the holders of
Preferred Shares shall vote separately as a class,
shall be necessary to effect any one or more of the
following:
(a) Any amendment, alteration or repeal of
any of the provisions of the Articles of
Incorporation or of the Regulations of the
Corporation which affects adversely the voting
powers, rights or preferences of the holders of
Preferred Shares; provided, however, that, for the
purpose of this clause (a) only, neither the
amendment of the Articles of Incorporation so as
to authorize or create, or to increase the
authorized or outstanding amount of Preferred
<PAGE 17>
Shares or of any shares of any class ranking on a
parity with or junior to the Preferred Shares, nor
the amendment of the provisions of the Regulations
so as to increase the number of Directors of the
Corporation shall be deemed to affect adversely
the voting powers, rights or preferences of the
holders of Preferred Shares; and provided further,
that if such amendment, alteration or repeal
affects adversely the rights or preferences of one
or more but not all series of Preferred Shares at
the time outstanding, only the affirmative vote of
the holders of at least two-thirds of the number
of shares at the time outstanding of the series so
affected shall be required;
(b) The authorization or creation of, or the
increase in the authorized amount of, any shares
of any class, or any security convertible into
shares of any class, ranking prior to the
Preferred Shares; or
(c) The purchase or redemption (for sinking
fund purposes or otherwise) of less than all of
the Preferred Shares then outstanding except in
accordance with a stock purchase offer made to all
holders of record of Preferred Shares, unless all
dividends upon all Preferred Shares then
outstanding for all previous quarterly dividend
periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund
obligations applicable thereto shall have been
complied with.
(iv) The affirmative vote of the holders of at
least a majority of the Preferred Shares at the time
outstanding, given in person or by proxy at a meeting
called for the purpose at which the holders of
Preferred Shares shall vote separately as a class,
shall be necessary to effect any one or more of the
following:
(a) The sale, lease or conveyance by the
Corporation of all or substantially all of its
property or business, or its consolidation with or
merger into any other corporation unless the
corporation resulting from such consolidation or
merger will have after such consolidation or
merger no class of shares either authorized or
outstanding ranking prior to or on a parity with
the Preferred Shares except the same number of
<PAGE 18>
shares ranking prior to or on a parity with the
Preferred Shares and having the same rights and
preferences as the shares of the Corporation
authorized and outstanding immediately preceding
such consolidation or merger, and each holder of
Preferred Shares immediately preceding such
consolidation or merger shall receive the same
number of shares, with the same rights and
preferences, of the resulting corporation; or
(b) The authorization of any shares ranking
on a parity with the Preferred Shares or an
increase in the authorized number of shares of
Preferred Shares.
(F) Definitions. For the purpose of the Division 1,
whenever reference is made to shares "ranking prior to
the Preferred Shares" or "on a parity with the
Preferred Shares," such reference shall mean and
include all shares of the Corporation in respect of
which the rights of the holders thereof as to the
payment of dividends or as to the distributions in the
event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an
equality with (as the case may be) the rights of the
holders of Preferred Shares; and whenever reference is
made to shares "ranking junior to the Preferred
Shares," such reference shall mean and include all
shares of the Corporation in respect of which the
rights of the holders thereof as to the payment of
dividends and as to the distributions in the event of a
voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation are junior
and subordinate to the rights of the holders of
Preferred Shares.
Division 2. EXPRESS TERMS OF THE COMMON SHARES.
The Common Shares shall be subject to the express terms
of the Preferred Shares and of any series thereof.
Each shareholder shall be entitled to one (1) vote for
each Common Share standing in his name on the books of
the Corporation.
FIFTH: The following provisions are hereby agreed to
for the purpose of defining, limiting and regulating the exercise
of the authority of the Corporation or of the directors, or of
all of the shareholders:
<PAGE 19>
(i) The Board of Directors is expressly
authorized to set apart out of any of the funds of the
Corporation available for dividends a reserve or
reserves for any proper purpose or to abolish any such
reserve in the manner in which it was created, and to
purchase on behalf of the Corporation any shares issued
by it to the extent of the surplus of the aggregate of
its assets over the aggregate of its liabilities plus
stated capital;
(ii) The Corporation may in its regulations
confer powers upon its board of directors in addition
to the powers and authorities conferred upon it
expressly by Sections 1701.01, et seq. of the Revised
Code of Ohio;
(iii) Any meeting of the shareholders or the
board of directors may be held at any place within or
without the State of Ohio in the manner provided for in
the regulations of the Corporation; and
(iv) Except as otherwise required by these
Articles of Incorporation, but notwithstanding any
provision of the Ohio Revised Code now or hereafter in
force requiring for any purpose the vote, consent,
waiver or release of the holders of shares entitling
them to exercise two-thirds, or any other proportion,
of the voting power of the Corporation or of any class
or classes of shares thereof, any amendments to the
Articles of Incorporation may be made from time to
time, and any proposal or proposition requiring the
action of shareholders may be authorized from time to
time by the affirmative vote of the holders of shares
entitling them to exercise a majority of the voting
power of the Corporation.
SIXTH: No holder of shares of the Corporation of any
class, as such, shall have the preemptive right to subscribe for
or to purchase any shares of any class of the Corporation or any
other securities of the Corporation, whether such shares of such
class are now or hereafter authorized.
SEVENTH: In no event shall a holder of shares of any
class have the right to cumulate their votes in the election of
directors.
EIGHTH: (1) In connection with the exercise of its
judgment in determining what is in the best interest of the
Corporation and its shareholders when evaluating a Business
<PAGE 20>
Combination or a proposal by another Person or Persons to make a
Business Combination or a tender or exchange offer or a proposal
by another Person or Persons to make a tender or exchange offer,
the Board of Directors of the Corporation shall, in addition to
considering the adequacy of the amount to be paid in connection
with any such transaction, consider all the following factors and
any other factors which it deems relevant: (i) the social and
economic effects of the transaction on the Corporation and its
subsidiaries, employees, depositors, loan and other customers,
creditors and other elements of the communities in which the
Corporation and its subsidiaries operate or are located; (ii) the
business and financial conditions and earnings prospects of the
acquiring Person or Persons, including, but not limited to, debt
service and other existing or likely financial obligations of the
acquiring Person or Persons, and the possible effect of such
conditions upon the Corporation and its subsidiaries and the
other elements of the communities in which the Corporation and
its subsidiaries operate or are located, and (iii) the
competence, experience, and integrity of the acquiring Person or
Persons and its or their management.
(2) The affirmative vote of the holders of not less
than eighty percent (80 percent) of the Voting Stock shall be
required for the approval or authorization of any Business
Combination with a Related Person, or any Business Combination in
which a Related Person has an interest (except proportionately as
a shareholder); provided, however, that the eighty percent
(80 percent) voting requirement shall not be applicable if (i)
the Continuing Directors, who at the time constitute at least a
majority of the entire Board of Directors of the Corporation,
have expressly approved the Business Combination by at least a
two-thirds (2/3) vote of such Continuing Directors, or (ii) all
of the following conditions are satisfied:
(A) The Business Combination is a merger or
consolidation and cash or fair market value of
property, securities or other consideration to be
received per share by holders of the Common Shares
(other than such Related Person) in the Business
Combination is at least equal in value to such Related
Person's Highest Purchase Price;
(B) After such Related Person has become the
Beneficial Owner of not less than ten percent
(10 percent) of the Voting Stock of the Corporation and
prior to the consummation of such Business Combination,
such Related Person shall not have become the
Beneficial Owner of any additional shares of Voting
Stock or securities convertible into Voting Stock,
except (i) as a part of the transaction which resulted
<PAGE 21>
in such Related Person becoming the Beneficial owner of
not less than ten percent (10 percent) of the Voting
Stock or (ii) as a result of a pro rata stock dividend
or stock split; and
(C) Prior to the consummation of such Business
Combination, such Related Person shall not have,
directly or indirectly, (i) received the benefit
(except proportionately as a shareholder) of any loan,
advances, guarantees, pledges, or other financial
assistance or tax credits provided by the Corporation
or any of its subsidiaries, or (ii) caused any material
change in the Corporation's business or equity capital
structure, including the issuance of shares of capital
stock of the Corporation to any third party.
(3) For purposes of this Article Eighth:
(i) The term "Business Combination" shall mean (a) any
merger or consolidation involving the Corporation or a subsidiary
of the Corporation, (b) any sale, lease, exchange, transfer or
other disposition (in one transaction or a series of
transactions), including without limitation a mortgage or any
other security device, of all or any Substantial Part of the
assets either of the Corporation or of a subsidiary of a
Corporation, (c) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of an
entity to the Corporation or a subsidiary of the Corporation,
(d) the issuance, sale, exchange, transfer or other disposition
by the Corporation or a subsidiary of the Corporation, of its
securities with or to the Related Person, (e) any
recapitalization or reclassification of the Corporation's
securities (including, without limitation, any reverse stock
split) or other transaction that would have the effect of
increasing the voting power of a Related Person, (f) any
liquidation, spin-off, split-up, or dissolution of the
Corporation, and (g) any agreement, contract or other arrangement
providing for any of the transactions described in this
definition of Business Transaction.
(ii) The term "Related Person" shall (a) mean and
include any individual, corporation, partnership, group,
association or other person or entity which, together with its
Affiliates and the Associates, is the Beneficial Owner of not
less than ten percent (10 percent) of the voting stock of the
corporation (1) at the time the definitive agreement providing
for the Business Combination (including any amendment thereof)
was entered into, (2) at the time a resolution approving the
Business Combination was adopted by the Board of Directors of the
Corporation, or (3) as of the record date for the determination
<PAGE 22>
of Shareholders entitled to notice of and to vote on, or consent
to, the Business Combination, and (b) shall mean and include any
Affiliate or Associate of any such individual, corporation,
partnership, group, association or other person or entity;
provided, however, and notwithstanding anything in the foregoing
to the contrary, the term "Related Person" shall not include the
Corporation, a wholly owned subsidiary of the Corporation, or any
trustee of, or fiduciary with respect to, any such plan when
acting in such capacity.
(iii) The term "Beneficial Owner" shall be defined
by reference to Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on March 1, 1984; provided, however, and
without limitation, any individual, corporation, partnership,
group, association or other person or entity which has the right
to acquire any Voting Stock at any time in the future, whether
such right is contingent or absolute, pursuant to any agreement,
arrangement or understanding upon exercise of the rights,
warrants or options, or otherwise, shall be beneficial owner of
such Voting Stock.
(iv) The term "Highest Purchase Price" shall mean the
highest amount of consideration paid by such Related Person for a
Common Share within two (2) years prior to the date such Related
Person became the Beneficial Owner of not less than ten percent
(10 percent) of the Voting Stock; and if such stock is not listed
on any principal exchange, the highest closing bid quotation with
respect to a share of stock during the thirty (30) day period
preceding the date in question -- or if no quotations are
available, the fair market value on the date in question of a
share of such stock as determined by the Board in good faith.
(v) The term "Voting Stock" shall mean all outstanding
shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the
purpose of this Article as one class; provided, however, that if
the Corporation has shares of Voting Stock entitled to more or
less than one vote for any such share, each reference to a
proportion of shares of Voting Stock shall be deemed to refer to
such proportion of the votes entitled to be cast by such shares.
(vi) The term "Continuing Director" shall mean a
director who either was a member of the Board of Directors of the
Corporation prior to the time such Related Person became a
Related Person or who subsequently became a director of the
Corporation and whose election, or nomination for election by the
Corporation's stock holder, was approved by a vote of at least
three-quarters (3/4) of the Continuing directors then of the
Board.
<PAGE 23>
NINTH: No amendment of these Articles shall be
effective to amend, alter, repeal or change the effect of any of
the provisions of Article EIGHTH unless such amendment shall
receive the affirmative vote of the holders of at least eighty
percent (80 percent) of the outstanding Common Shares; provided,
however, that such voting requirement shall not be applicable to
the approval of such an amendment if such amendment shall have
been proposed and authorized by action of the Board of Directors
of the Corporation by the affirmative vote of at least two-thirds
(2/3) of the Continuing Directors, as that term is defined in
Article EIGHTH.
TENTH: The Corporation shall have the power to
indemnify its present and past directors, officers, employees and
agents, and such other persons as it shall have powers to
indemnify, to the full extent permitted under, and subject to the
limitations of, Title 17 of the Ohio Revised Code. The
Corporation may, upon the affirmative vote of a majority of its
Board of Directors, purchase insurance for the purpose of
indemnifying its directors, officers, employees and agents to the
extent that such indemnification is allowed in this Article
TENTH.
ELEVENTH: These Amended Articles of Incorporation
supersede the Restated and Amended Articles of Incorporation of
the Corporation, as amended, heretofore in effect.