Exhibit 3(i)
ARTICLES OF INCORPORATION
OF
SUMMIT FINANCIAL GROUP, INC.
The undersigned, acting as incorporator of a corporation under Section 27,
Article 1, Chapter 31 of the Code of West Virginia, adopts the following
Articles of Incorporation for such corporation, FILED IN DUPLICATE:
I. The undersigned agrees to become a corporation by the name of SUMMIT
FINANCIAL GROUP, INC.
II. The address of the principal office of said corporation will be 310
North Main Street, City of Moorefield, County of Hardy, State of West
Virginia.
III. The purpose or purposes for which this corporation is organized are as
follows.
To acquire and own stock and securities, of whatever kind, nature and
description, in a bank or banks, and to take such actions as are necessary or
incidental to the acquisition of a bank or banks;
To engage, either directly itself, indirectly by the formation of
subsidiary corporations or otherwise, in any activity permitted to be undertaken
by a bank holding company under existing or future laws, rules and regulations
relating thereto;
Subject to the foregoing and unless otherwise limited herein to own, buy,
acquire, sell, exchange, assign, lease and deal in and with real property and
any interest or right therein; to own, buy, acquire, sell, exchange, assign,
lease and deal in and with personal property and any interest or right therein;
to own, buy, acquire, sell, exchange, assign, pledge and deal with voting stock,
non-voting stock, notes, bonds, evidence of indebtedness and rights and
options in and to other corporate and non-corporate entities, and to pay
therefor in whole or in part in cash or by exchanging therefor stocks, bonds, or
other evidences of indebtedness or securities of this or any other corporation,
and while the owner or holder of any such stocks, bonds, debentures, notes,
evidences or indebtedness or the securities, contracts, or obligations, to
receive, collect, and dispose of the interest, dividends and income arising from
such property, and to possess and exercise in respect thereof, all the rights,
powers and privileges of ownership, including all voting powers on any stocks so
owned; and to borrow money without limit as to amount; and
Otherwise, subject to the foregoing and unless otherwise limited herein, to
engage in any lawful act or activity for which corporations may be organized
under the laws of the State of West Virginia.
IV. A. The amount of total authorized capital stock of the Corporation
shall be Twelve Million Seven Hundred Fifty Thousand Dollars
($12,750,000), which shall be divided into Five Million (5,000,000)
shares of common stock with the par value of $2.50 each and Two
Hundred Fifty Thousand (250,000) shares of preferred stock with the
par value of $1.00 each.
B. The Corporation may issue shares of preferred or special classes:
(i) subject to the right of the Corporation to redeem any of such
shares at the price fixed by the Articles of Incorporation for the
redemption thereof; (ii) entitling the holders thereof to cumulative,
non-cumulative or partially cumulative dividends; (iii) having
preference over any other class or classes of shares as to the payment
of dividends; (iv) having preference in the assets of the Corporation
over any other class or classes of shares upon the voluntary or
involuntary liquidation of the
Corporation; and (v) convertible into shares of any other class or
into shares of any series of the same or any other class, except a
class having prior or superior rights and preferences as to dividends
or distribution of assets upon liquidation, but shares without par
value, if any, shall not be converted into shares with par value
unless that part of the stated capital of the Corporation represented
by such shares without the par value is, at the time of conversion, at
least equal to the aggregate par value of the shares into which the
shares without par value are to be converted or the amount of any such
deficiency is transferred from surplus to stated capital.
C. Preferred stock may be divided into and issued by the Board of
Directors from time to time in one or more series. All shares of
preferred stock shall be of equal rank and shall be identical, except
as to the following relative rights and preferences which may be fixed
and determined by the Board of Directors, as to which there may be
variations between different series:
(1) the rate of dividends;
(2) whether shares may be redeemed and, if so, the redemption
price and the terms and conditions of redemption;
(3) the amount payable upon shares in event of voluntary and
involuntary liquidation;
(4) sinking fund provisions, if any, for the redemption or
purchase of shares;
(5) the terms and conditions, if any, on which shares may be
converted; and
(6) voting rights, if any.
D. The Board of Directors of the Corporation shall have all of the
power and authority with respect to the shares of preferred stock that
may be delegated to the Board of Directors pursuant to the terms and
provisions of Chapter 31, Article 1, Sections 78 and 79 of the Code of
West Virginia, as amended, or such corresponding section of the Code
of West Virginia as may be adopted from time to time, and shall
exercise such power and authority by the adoption of a resolution or
resolutions as prescribed by law.
V. The name and address of the incorporators and the number of shares
subscribed by each of them is as follows:
NUMBER
NAME ADDRESS OF SHARES
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Oscar M. Bean Rt. 2, Box 116 34
Moorefield, WV 26836
Donald W. Biller Rt. 1, Box 30 35
Lost River, WV 26811
Thomas J. Hawse 216 Washington Street 35
Moorefield, WV 26836
Phoebe F. Heishman 136 S. Main Street 35
Moorefield, WV 26836
Ed A. Leatherman, Jr. Rt. 1, Box 175 35
Purgitsville, WV 26852
J. Aleck Welton Box 366 35
Moorefield, WV 26836
Renick C. Williams Box 664 35
Moorefield, WV 26836
Michael T. Wilson Rt. 4 Sunset View 35
Moorefield, WV 26836
Harry C. Welton Rt. 4, Box 27 35
Moorefield, WV 26836
A. Clyde Ours, Jr. Box 541 35
Moorefield, WV 26836
E. E. Hott Box 1 35
Franklin, WV 26807
VI. The existence of this corporation is to be perpetual.
VII. The name and address of the person to whom shall be sent notice or
process served upon, or service of which is accepted by The Secretary
of State is:
Renick C. Williams
Box 664
Moorefield, WV 26836
VIII.The number of directors constituting the initial board of directors
of the corporation is eleven (11). The names and addresses of the
persons who are to serve as directors until their term expires and
their successors are elected and shall qualify are:
NAME ADDRESS
---- -------
Oscar M. Bean Rt. 2, Box 116
Moorefield, WV 26836
Donald W. Biller Rt. 1, Box 30
Lost River, WV 26811
Thomas J. Hawse 216 Washington Street
Moorefield, WV 26836
Phoebe F. Heishman 136 S. Main Street
Moorefield, WV 26836
Ed A. Leatherman, Jr. Rt. 1, Box 175
Purgitsville, WV 26852
J. Aleck Welton Box 366
Moorefield, WV 26836
Renick C. Williams Box 664
Moorefield, WV 26836
Michael T. Wilson Rt. 4, Sunset View
Moorefield, WV 26836
Harry C. Welton Rt. 4, Box 27
Moorefield, WV 26836
A. Clyde Ours, Jr. Box 541
Moorefield, WV 26836
E.E. Hott Box 1
Franklin, WV 26807
IX. Provisions limiting preemptive rights are: The shareholders of the
corporation shall not have any preemptive rights to acquire any shares of stock
of the corporation.
X. Provisions for the regulations of the internal affairs of the
corporation shall be as follows:
A. Definitions. For purposes hereof, the following terms are defined as
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follows:
1. Affiliate. An "affiliate" of, or a person "affiliated" with, a specific
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person, means a person (other than this Corporation or a majority-owned or
wholly owned subsidiary of this Corporation) that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
2. Associate. The term "associate" when used to indicate a relationship
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with any person, means (i) any corporation, partnership, limited partnership,
association, joint venture, group or other organization (other than this
Corporation or a majority- owned or wholly owned subsidiary of this Corporation)
of which such person is an officer or partner or is, directly or indirectly, the
Beneficial Owner of ten percent (10%) or more of any class of equity securities
or other medium of ownership rights, (ii) any trust or other estate in which
such person has a substantial beneficial interest or as to which such person
serves as trustee or in
a similar fiduciary capacity, (iii) any relative or spouse of such person, or
any relative of such spouse provided the relative has the same home as such
person, or (iv) any investment company registered under the Investment Company
Act of 1940 for which such person or any affiliate of such person serves as
investment adviser.
3. Beneficial Owner. A person shall be considered the "Beneficial Owner" of
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any shares of stock whether or not owned of record by such Person:
(a) With respect to any shares as to which such Person or any Affiliate or
Associate of such Person directly or indirectly has or shares (i) voting power,
including the power to vote or to direct the voting of such shares of stock
and/or (ii) investment power, including the power to dispose of or to direct the
disposition of such shares of stock;
(b) With respect to any shares as to which such Person or any Affiliate or
Associate of such Person has (i) the right to acquire such shares (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, and/or (ii) the
right to vote pursuant to any agreement, arrangement or understanding (whether
such right is exercisable immediately or only after the passage of time); or
(c) With respect to any shares which are Beneficially Owned within the
meaning of (a) or (b) of this Paragraph (3) above by any other Person with which
such first-mentioned Person or any of its Affiliates or Associates has any
agreement, arrangement or understanding, written or oral, with respect to
acquiring, holding, voting or disposing of any shares of stock of the
Corporation or any Subsidiary of the Corporation or acquiring, holding or
disposing of all or substantially all, or any substantial part, of the assets or
businesses of the Corporation or a Subsidiary of the Corporation.
For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage of outstanding shares, such shares shall be deemed to
include any shares which may be issuable pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights, exchange rights,
warrants, options or otherwise and which are deemed to be beneficially owned by
such Person pursuant to the foregoing provisions of this Paragraph (3) above.
4. Business Combination. A "Business Combination" means:
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(a) The sale, exchange, lease, transfer or other disposition to or with a
Related Person or any Affiliate or Associate of such Related Person by the
Corporation or any of its Subsidiaries (in a single transaction or a series of
related transactions) of all or substantially all, or any substantial part, or
its or their assets or businesses including, without limitation, any securities
issued by a Subsidiary;
(b) The purchase, exchange, lease or other acquisition by the Corporation
or any of its Subsidiaries (in a single transaction or a series of related
transactions) of all or substantially all, or any Substantial Part, of the
assets or business of a Related Person or any Affiliate or Associate of such
Related Person:
(c) Any merger or consolidation of the Corporation or any Subsidiary
thereof into or with a Related Person or any Affiliate or Associate of such
Related Person or into or with another person which, after such merger or
consolidation, would be an Affiliate or an Associate of a Related Person, in
each case irrespective of which Person is the surviving entity in such merger or
consolidation;
(d) Any reclassification of securities, recapitalization or other
transaction (other than a redemption in accordance with the terms of the
security redeemed) which has the effect, directly or indirectly, of increasing
the proportionate amount of shares of the Corporation or any Subsidiary thereof
which are Beneficially Owned by a Related Person, or any partial or
complete liquidation, spinoff, splitoff or splitup of the Corporation or
Subsidiary thereof which has the effect, directly or indirectly, of increasing
the proportionate amount of shares of the Corporation or any subsidiary thereof
which are Beneficially Owned by a Related Person; or
(e) The acquisition upon the issuance thereof of Beneficial Ownership by a
Related Person of voting shares or securities convertible into voting shares or
any voting securities or securities convertible into voting securities of any
Subsidiary of the Corporation, or the acquisition upon the issuance thereof of
Beneficial Ownership by a Related Person of any rights, warrants or options to
acquire any of the foregoing or any combination of the foregoing voting shares
or voting securities of a Subsidiary.
As used herein a `series of related transactions' shall be deemed to
include not only a series of transactions with the same Related Person but also
a series of separate transactions with a Related Person or any Affiliate or
Associate of such Related Person.
(f) Notwithstanding the foregoing, the term "Business Combination" shall
not mean the formation of the Corporation or the acquisition by it of South
Branch Valley National Bank, a national banking association, with its principal
banking offices located in Moorefield, West Virginia.
5. Corporation. "Corporation" shall mean South Branch Valley Bancorp, Inc.,
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a West Virginia business corporation.
6. Date of Determination. The term `Date of Determination' means (a) the
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date on which a binding agreement (except for the fulfillment of conditions
precedent, including, without limitation, votes of shareholders to approve such
transaction) is entered into by this Corporation, as authorized by its board of
directors, and another corporation, person or other entity providing for any
merger or consolidation of this Corporation or any sale, lease, exchange or
disposition of all or substantially all of the assets of this Corporation; or,
(b) if
such an agreement as referred to in item (a) is amended so as to make it less
favorable to this Corporation and its shareholders, the date on which such
amendment is approved by the board of directors of this Corporation, or, (c) in
cases where neither items (a) nor item (b) shall be applicable, the record date
for the determination of shareholders of this Corporation entitled to notice of
and to vote upon the transaction in question. The board of directors of this
Corporation shall have the power and duty to determine for the purposes hereof
the Date of Determination as to any transaction. Any such determination by the
board of directors made in good faith shall be conclusive and binding for any
and all purposes.
7. Person. The term "Person" shall mean any person, partnership,
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corporation, group or other entity (other than the Corporation, any Subsidiary
of the Corporation, or a trustee holding stock for the benefit of the employees
of the Corporation or its Subsidiaries, or any one of them, pursuant to one or
more employee benefit plans or arrangements). When two or more Persons act as a
partnership, limited partnership, syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock, such
partnerships, syndicate, association or group shall be deemed a "Person".
8. Related Person. "Related Person" means any Person which is the
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Beneficial Owner as of the Date of Determination or immediately prior to the
consummation of a Business Combination, or both, of twenty-five (25) percent or
more of the voting shares of the Corporation or any Person who at any time
within two (2) years preceding the Date of Determination was the Beneficial
Owner of twenty-five (25) percent or more of the then outstanding voting shares
of the Corporation.
9. Subsidiary. "Subsidiary" shall mean South Branch Valley National Bank, a
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national banking association as of the effective date of the acquisition of said
bank by this corporation and any other corporation, bank, banking association or
other entity at least a majority of which is owned by South Branch Valley
Bancorp, Inc.
10. Capacity to Make Certain Determinations. A majority of the directors of
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the Corporation shall have the power to determine for the purposes hereof on the
basis of information known to them: (i) the number of voting shares of the
Corporation of which any Person is the Beneficial Owner, (ii) whether a Person
is an Affiliate of Associate of another, (iii) whether a Person has an
agreement, arrangement or understanding with another as to the matters referred
to in the definition of `Beneficial Owner' as hereinabove defined, (iv) whether
the assets subject to any Business Combination constitute a substantial part of
total assets, (v) whether two or more transactions constitute a `series of
related transactions' as hereinabove defined, and (vi) such other matters with
respect to which a determination is required hereunder.
A Related Person shall be deemed to have acquired a share of the
Corporation at the time when such Related Person became the Beneficial Owner
thereof. With respect to shares owned by Affiliates, Associates or other Persons
whose ownership is attributed to a Related Person under the foregoing definition
of Beneficial Owner, if the price paid by such Related Person for such shares is
not determinable, the price so paid shall be deemed to be the higher of (i) the
price paid upon acquisition thereof by the Affiliate, Associate or other Person
or (ii) the market price of the shares in question (as determined by a majority
of the board of directors of the Corporation) at the time when the Related
Person became the Beneficial Owner thereof.
B. Voting Requirements for Merger, Consolidation or Sale of Assets. Subject
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to any other requirements provided for by law and in this charter or any
amendment thereto, in order for any merger or consolidation of this Corporation
with another corporation or any sale, lease or exchange by liquidation or
otherwise of all or substantially all of the assets of this Corporation to be
approved by the shareholders of this Corporation, not less than sixty-six and
two-thirds percent (66 2/3%) of the authorized, issued and outstanding voting
shares of
the Corporation must vote in favor of such action unless the Business
Combination has been previously approved by at least sixty-six and two-thirds
percent (66 2/3%) of the board of directors of the Corporation in which case
only a simple majority vote of the shareholders shall be required.
C. Fair Price Requirement. Neither the Corporation or any of its
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Subsidiaries shall become party to any Business Combination unless all of the
following conditions are satisfied:
(1) The ratio of (i) the aggregate amount of the cash and the fair market
value of other consideration to be received per share of common stock of the
Corporation in such Business Combination by holders of common stock other than
the Related Person involved in such Business Combination, to (ii) the market
price per share of the common stock immediately prior to the announcement of the
proposed Business Combination, is at least as great as the ratio of (x) the
highest per share price (including brokerage commissions, transfer taxes and
soliciting dealers' fees) which such Related Person has theretofore paid in
acquiring any common stock of the Corporation prior to such Business
Combination, to (y) the market price per share of common stock of the
Corporation immediately prior to the initial acquisition by such Related Person
of any shares of common stock of the Corporation; and
(2) The aggregate amount of the cash and the fair market value of other
consideration to be received per share of common stock of the Corporation in
such Business Combination by holders of common stock of the Corporation, other
than the Related Person involved in such Business Combination, (i) is not less
than the highest per share price (including brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by such Related Person in acquiring any
of its holdings of common stock of the Corporation, and (ii) is not less than
the earnings per share of common stock of the Corporation for the four full
consecutive fiscal quarters of the Corporation immediately preceding the Date of
Determination of such Business Combination multiplied by the then price/earnings
multiple (if any) of such Related Person as customarily computed and reported in
the financial community; provided, that for the purposes of this clause (ii), if
more than one Person constitutes the Related Person involved in the Business
Combination, the price/earnings multiple (if any) of the Person having the
highest price/earnings multiple shall be used for the computation in this
clause, (ii); and
(3) The consideration (if any) to be received in such Business Combination
by holders of common stock of the Corporation other than the Related Person
involved shall, except to the extent that a stockholder agrees otherwise as to
all or part of the shares which he or she owns, be in the same form and of the
same kind as the consideration paid by the Related Person in acquiring common
stock of the Corporation already owned by it.
D. Evaluation of Acquisition of this Corporation by Another Corporation. In
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connection with the exercise of its judgment in determining what is in the best
interest of the Corporation and its stockholders when evaluating an acquisition
of this Corporation by another corporation or a tender or exchange offer for
control of this Corporation, 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 of 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 entity or
entities, 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
operate or are located; and (iii) the competence, experience, and integrity of
the acquiring entity or entities and its or their management.
E. Classified Board of Directors. At the first annual meeting of the
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shareholders, after the effective date of the acquisition of South Branch Valley
National Bank as a bank subsidiary, the board of directors shall be divided into
three classes, designated Class I, Class II and Class III, consisting of an
equal number of directors per class. The term of office of directors of one
class shall expire at each annual meeting of stockholders, and as to each
director until his or her successor shall be elected and shall qualify, or until
his or her earlier resignation, removal from office, death or incapacity.
Additional directorships resulting from an increase in number of directors shall
be apportioned among the classes as equally as possible. A decrease in the
number of directors by death, resignation or removal may but shall not be
required to be filled by the remaining board members. The initial term of office
of directors of Class I shall expire at the first annual meeting of
stockholders, that of Class II shall expire at the second annual meeting, and
that of Class III shall expire at the third annual meeting, and in all cases as
to each director until his or her successor shall be elected and shall qualify,
or until his or her earlier resignation, removal from office, death or
incapacity. At each annual meeting of stockholders the number of directors equal
to the number of directors of the class whose term expires at the time of such
meeting (or, if less, the number of directors properly nominated and qualified
for election) shall be elected to hold office until the third succeeding annual
meeting of the stockholders after their election.
The directors remaining in office acting by a majority vote, or a sole
remaining director, although less than a quorum, are hereby expressly delegated
the power to fill any vacancies in the board of directors, however occurring,
whether by an increase in the number of directors, death, resignation,
retirement, disqualification, removal from office, or otherwise, and any
director so chosen shall hold office until the next election of the class for
which such
director shall have been chosen and until his or her successor shall have been
elected and qualified, or until his or her earlier resignation, removal from
office, death or incapacity.
The total number of directors of this Corporation shall be not less than
nine nor more than twenty-one as from time to time fixed by the board of
directors.
F. Nomination of Directors. Nominations for election to the board of
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directors may be made by the board of directors or by any shareholder entitled
to vote for the election of directors. Nominations, other than those made by or
on behalf of the existing management of the Corporation, must be made in writing
and delivered or mailed to the President of the Corporation not less than thirty
(30) days prior to any meeting of shareholders called for the election of
directors; provided, however, that if less than thirty (30) days notice of the
meeting is given to shareholders, such nomination shall be mailed or delivered
to the President of the Corporation not later than the fifth (5th) day following
the day on which the notice of meeting was mailed. Such notification shall
contain the following information to the extent known by the shareholder: (i)
the name and address of each nominee, (ii) the principal occupation of each
nominee, (iii) the name and address of the notifying shareholder, and (iv) the
number of shares of the Corporation's stock owned by the notifying shareholder.
Nominations not made in accordance herewith, may, in the discretion of the
chairman of the meeting, be disregarded, and upon his instruction, the votes
cast for each such nominee shall be disregarded.
G. Removal of a Director for Cause Only. The removal from office of any
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director must be for cause as set forth herein. Except as may otherwise be
provided by law, cause for removal shall be construed to exist only if:
(1) the director whose removal is proposed has been convicted, or where a
director was granted immunity to testify where another has been convicted, of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal; (2) such
director has been adjudicated by a court of competent jurisdiction to be liable
for negligence, or misconduct, in the performance of his duty to the Corporation
and such adjudication is no longer subject to direct appeal; (3) such director
has become mentally incompetent, whether or not so adjudicated, which mental
incompetency directly affects his or her ability as a director of the
Corporation; (4) such director ceases to fulfill the qualification requirements
for a director of a West Virginia bank holding company; or (5) such director's
actions or failure to act have been determined by a majority of the board of
directors to be in derogation of the director's duties.
Removal for cause, as cause is defined in (1) and (2) above, must be
brought within one year of such conviction or adjudication. For purposes of (5)
above, the total number of directors as to which a majority is required will not
include the director who is the subject of the removal determination, nor will
such director be entitled to vote thereon except in his or her shareholder
capacity.
H. Anti-Greenmail Provision. The Corporation shall not engage, directly or
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indirectly, in any Stock Repurchase (as hereinafter defined) from an Interested
Stockholder (as hereinafter defined) or an Affiliate (as previously defined) or
Associate (as previously defined) of an Interested Stockholder (as hereinafter
defined) who has beneficially acquired any shares of voting stock of the
Corporation within a period of less than two (2) years immediately prior to the
date of such proposed Stock Repurchase (or the date of an agreement in respect
thereof) without the affirmative vote of not less than a majority of the votes
entitled to be cast by the holders of all then outstanding shares of voting
stock of the Corporation which are Beneficially Owned (as previously defined) by
persons other than such Interested Stockholder, 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 or separate class vote may be
specified, by law or otherwise.
The provisions of this Article shall not be applicable to any particular
Stock Repurchase from an Interested Stockholder, and such Stock Repurchase shall
require only such affirmative vote, if any, as is required by law if the
conditions specified in either of the following Paragraphs 1 or 2 are met:
1. The Stock Repurchase is made pursuant to a tender offer or exchange
offer for a class of common stock made available on the same basis to all
holders of such class of common stock.
2. The Stock Repurchase is made pursuant to an open market purchase program
approved by a majority of the directors of the Corporation provided that such
repurchase is effected on the open market and is not the result of a privately
negotiated transaction.
For purposes hereof:
1. The term "Stock Repurchase" shall mean any repurchase (or any agreement
to repurchase), directly or indirectly, by the Corporation or any Subsidiary of
any shares of common stock at a price greater than the Fair Market Value of such
shares.
2. The term "Interested Stockholder" shall mean any person (other than this
Corporation or any Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of this Corporation or any Subsidiary
or any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who (1) is the Beneficial Owner of voting stock of the Corporation
representing ten percent (10%) or more of the votes entitled to be cast by the
holders of all then outstanding shares of voting stock of the Corporation; and
(b) acquired at least one-half of such shares at any time within the two year
period immediately prior to the date in question.
3. The term `Fair Market Value' means (a) in the case of a cash purchase,
the amount of such cash, (b) in the case of a stock exchange, the fair market
value on the date in
questions of a share of such offered stock as determined in good faith by a
majority of the directors; and (c) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined in good faith by a majority of the directors.
The board of directors shall have the power and duty to determine for the
purposes hereof, on the basis of information known to then after reasonable
inquiry, (a) whether a person is an Interested Stockholder, (b) the number of
shares of common stock or other securities beneficially owned by any person, (c)
whether a person is an Affiliate or Associate of another and (d) whether the
consideration to be paid in any Stock Repurchase has an aggregate Fair Market
Value in excess of the then Fair Market Value of the shares of common stock
being repurchased. Any such determination made in good faith shall be binding
and conclusive on all parties.
Nothing contained herein shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
1. Director and Officer Indemnification. Unless otherwise prohibited by
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law, each director and officer of the corporation now or hereafter serving as
such, and each director and officer of any majority or wholly owned subsidiary
of the corporation that has been designated as entitled to indemnification by
resolution of the board of directors of the corporation as may be from time to
time determined by said board, shall be indemnified by the corporation against
any and all claims and liabilities (other than an action by or in the right of
the corporation or any majority or wholly owned subsidiary of the corporation)
including expenses of defending such claim of liability to which he or she has
or shall become subject by reason of any action alleged to have been taken,
omitted, or neglected by him or her as such director or officer provided the
director or officer acted in good faith and in a manner which the director or
officer reasonably believed to be in or not opposed to the
best interests of the corporation. With respect to any criminal proceeding, a
director or officer shall be entitled to indemnification if such person had no
reasonable cause to believe his or her conduct was unlawful. The corporation
shall reimburse each such person as provided above in connection with any claim
or liability brought or arising by or in the right of the corporation or any
majority or wholly owned subsidiary of the corporation provided, however, that
such person shall be not indemnified in connection with, any claim or liability
brought by or in the right of the corporation or any majority or wholly owned
subsidiary of the corporation as to which the director or officer shall have
been adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the corporation or any majority or wholly owned subsidiary of
the corporation unless and only to the extent that the court in which such
action or proceeding was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnify for such expenses which
such court shall deem proper.
The determination of eligibility for indemnification shall be made by those
board members not party to the action or proceeding or in the absence of such
board members by a panel of independent shareholders appointed for such purpose
by a majority of the shareholders of the corporation or in any other manner
provided by law.
The right of indemnification hereinabove provided for shall not be
exclusive or any rights to which any director or officer of the corporation may
otherwise be entitled by law.
The board of directors may be by resolution, by law or other lawful manner
from time to time as it shall determine extend the indemnification provided
herein to agents and employees of the corporation, to directors, officers,
agents or employees of other corporations or entities owned in whole or in part
by the corporation. The corporation may purchase and maintain insurance for the
purposes hereof.
J. Voting Requirements for Charter Amendments. Any amendment, change or
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repeal of this Article X or any other amendment of these Articles of
Incorporation, which would have the effect of modifying or permitting
circumvention of any provision of these Articles of Incorporation, shall require
the affirmative vote, at a meeting of stockholders of the Corporation, of
holders of at least sixty-six and two-thirds percent (66 2/3%) of the then
outstanding voting shares of the Corporation; provided, however, that this
provision shall not apply to, and such vote shall not be required for, any such
amendment, change or repeal recommended to stockholders by the favorable vote of
not less than sixty-six and two-thirds percent (66 2/3%) of the directors of the
Corporation and any such amendment, change or repeal so recommended shall
require only a simple majority vote of the shareholders to be approved.
WE, THE UNDERSIGNED, for the purpose of forming a corporation under the
laws of the State of West Virginia, do make and file in duplicate these ARTICLES
OF INCORPORATION, and we have accordingly hereunto set our hands this 3rd day of
March, 1987.
/s/ Oscar M. Bean
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Oscar M. Bean
/s/ Donald W. Biller
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Donald W. Biller
/s/ Thomas J. Hawse
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Thomas J. Hawse
/s/ Phoebe F. Heishman
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Phoebe F. Heishman
/s/ Ed A. Leatherman, Jr.
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Ed A. Leatherman, Jr.
/s/ Aleck Welton
----------------
J. Aleck Welton
/s/ Renick C. Williams
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Renick C. Williams
/s/ Michael T. Wilson
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Michael T. Wilson
/s/ Harry C. Welton
-------------------
Harry C. Welton
/s/ A. Clyde Ours, Jr.
----------------------
A. Clyde Ours, Jr.
/s/ E.E. Hott
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E.E. Hott