THE MARKET BUILDING AND SAVING COMPANY
PLAN OF CONVERSION
TABLE OF CONTENTS
1. Introduction..............................................................1
2. Definitions...............................................................1
3. Procedures for the Conversion.............................................4
4. Purchase Price of Common Shares and Number of Shares to be Offered in
Connection with the Conversion............................................5
5. Subscription Rights of Eligible Account Holders...........................6
6. Subscription Rights of Tax-Qualified Employee Stock Benefit Plans.........6
7. Subscription Rights of Supplemental Eligible Account Holders..............6
8. Subscription Rights of Other Eligible Members.............................7
9. Community Offering........................................................7
10. Additional Limitations on Purchases.......................................8
11. Procedures for the Subscription Offering and the Community Offering.......9
12. Payment for Common Shares.................................................9
13. Expiration of Subscription Rights; Undelivered, Defective or Late Order
Forms; Insufficient Payment..............................................10
14. Compliance with Securities Laws..........................................11
15. Rights of Shareholders After Completion of Conversion....................11
16. Establishment of Liquidation Account.....................................11
17. Accounts in Converted Association........................................12
18. Restrictions on Purchases and Sales of Common Shares by Officers and
Directors Following Conversion...........................................12
19. Restrictions on Acquisition of Market or Holding Company.................13
20. Amendment or Termination of this Plan....................................13
21. Consummation of Conversion...............................................13
22. Tax Rulings/Opinions.....................................................13
23. Directors and Officers of Market.........................................14
24. Stock Benefit Plans......................................................14
25. Registration of Common Shares; Market for Common Shares..................14
26. Expenses of Conversion...................................................14
27. Mailing of Proxy Materials...............................................14
28. Interpretation of the Plan...............................................14
THE MARKET BUILDING AND SAVING COMPANY
PLAN OF CONVERSION
1. INTRODUCTION.
This Plan of Conversion, adopted by the Board of Directors of The Market
Building and Saving Company (hereinafter referred to as "Market") on April 16,
1996 (hereinafter referred to as this "Plan"), provides for the conversion of
Market from a mutual savings and loan association incorporated under Ohio law to
a permanent capital stock savings association incorporated under Ohio law
(hereinafter referred to as the "Conversion") and the acquisition by a holding
company to be formed at the direction of Market of all of the capital stock to
be issued by Market in the Conversion. The purpose of the Conversion is to
provide Market with additional capital to increase regulatory capital, expand
lending and investment activities, enhance customer services and pursue other
lawful activities which the Board of Directors may deem to be in the best
interests of Market.
After the completion of the Conversion, savings accounts in Market will be
equivalent in amount, interest rate and other terms to the savings accounts in
Market immediately prior to the Conversion and will continue to be insured by
the Federal Deposit Insurance Corporation to the maximum amount permitted by
law. Rights of account holders with respect to liquidation and voting will
change, however, as a result of the Conversion. As a permanent capital stock
savings association, Market will succeed to all of the presently existing
rights, interests, duties and obligations of the mutual savings and loan
association to the extent provided by law, including, but not limited to, all
rights to and interests in its assets and properties, both real and personal.
This Plan must be approved at the Special Meeting (hereinafter defined) of
Members (hereinafter defined) by the affirmative vote of a majority of the total
outstanding votes entitled to be cast at the Special Meeting hereinafter
defined). Before this Plan may be submitted at the Special Meeting to the
members of Market for approval, however, this Plan must be approved by the OTS
(hereinafter defined) and the Division (hereinafter defined). The Amended
Articles of Incorporation and Amended Constitution of Market must also be
approved at the Special Meeting by the affirmative vote of at least three-fifths
of the votes cast in person or by proxy at the Special Meeting.
2. DEFINITIONS.
As used in this Plan, the following terms have the corresponding meanings:
ACTING IN CONCERT means (a) knowing participation in a joint activity or
interdependent conscious parallel action towards a common goal whether or
not pursuant to an express agreement, or (b) a combination or pooling of
voting or other interests in the securities of an issuer for a common
purpose pursuant to any contract, understanding, relationship, agreement or
other arrangement, whether written or otherwise.
AFFILIATE, when used to indicate a relationship with a specified Person,
means a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with
the Person specified.
AMENDED ARTICLES means the Amended Articles of Incorporation of Market
which are in the form attached hereto as Exhibit I and which authorize the
Common Shares and which will be filed with the Ohio Secretary of State on
the date on which the Conversion becomes effective.
AMENDED CONSTITUTION means the Amended Constitution of Market in the form
which is attached hereto as Exhibit II and which will be filed with the
Division on the date on which the Conversion becomes effective.
APPLICATION means the Application for Conversion on Form AC to be filed by
Market with the OTS pursuant to Title 12, Code of Federal Regulations, Part
563b and with the Division pursuant to Ohio Administrative Code Section
1301-2-1-16.
ASSOCIATE, when used to indicate a relationship with any Person, means (i)
any corporation or organization (other than Market, the Holding Company or
a majority-owned subsidiary of Market or the Holding Company) of which such
Person is an Officer or partner or is, directly or indirectly, the
beneficial owner of 10% or more of any class of equity securities, (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, except that such term will not include a Tax-Qualified
Employee Stock Benefit Plan, and (iii) any relative or spouse of such
Person, or any relative of such spouse, who has the same home as such
Person or who is a director or Officer of Market, the Holding Company or
any of their subsidiaries.
BROKER means any Person engaged in the business of effecting transactions
in securities for the account of others.
COMMON SHARES means the common shares of the Holding Company to be offered
and sold by the Holding Company in connection with the Conversion.
COMMUNITY MEMBER means any natural person who, on the date of submission of
an Order Form, is a resident of Hamilton County, the county in which the
office of Market is located.
COMMUNITY OFFERING means the offering of Common Shares to the public
concurrently with or after the completion of the Subscription Offering in a
manner by which Community Members are given preference.
CONVERSION means the change in the form of Market from the mutual to the
permanent capital stock form upon (i) the filing of the Amended Articles;
(ii) the sale and issuance of Common Shares by the Holding Company in the
Subscription Offering and the Community Offering, and (iii) the purchase by
the Holding Company of the capital stock of Market.
DEALER means any Person who engages either for all or part of such person's
time, directly or indirectly, as an agent, Broker or principal, in the
business of offering, buying, selling or otherwise dealing or trading in
securities issued by another Person.
DIVISION means the Division of Financial Institutions of the Department of
Commerce of the State of Ohio.
ELIGIBILITY RECORD DATE means the close of business on December 31, 1994,
the record date set by Market for determining Eligible Account Holders.
ELIGIBLE ACCOUNT HOLDER means any person holding a Qualifying Deposit in
Market on the Eligibility Record Date.
FDIC means the Federal Deposit Insurance Corporation, an agency of the
United States Government.
HOLDING COMPANY means a corporation to be formed at the direction of Market
under Ohio law for the purpose of becoming a savings and loan holding
company through the acquisition of all of the capital stock to be issued by
Market in connection with the Conversion.
INDEPENDENT APPRAISER means the firm employed by Market to determine the
estimated pro forma market valuation of Market to be used as the basis for
determining the price of the Common Shares.
LIQUIDATION ACCOUNT means the account established in accordance with
Section 16 of this Plan for Eligible Account Holders and Supplemental
Eligible Account Holders who continue to maintain a Savings Account at
Market after the Conversion.
MARKET means The Market Building and Saving Company, in its mutual form or
stock form, as appropriate.
MEMBER means any Person qualifying as a member of Market under its Articles
of Incorporation and Constitution.
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OFFICER means an executive officer of the Holding Company or Market,
including the Chairman of the Board of Directors, the President, a Vice
President, the Secretary, the Treasurer or principal financial officer, or
the comptroller or principal accounting officer of the Holding Company or
Market and any other person performing similar functions for the Holding
Company or Market.
ORDER FORMS means the original forms which will be sent to the Eligible
Account Holders, Tax-Qualified Employee Stock Benefit Plans, Supplemental
Eligible Account Holders and Other Eligible Members to enable such Persons
to exercise their respective Subscription Rights in accordance with this
Plan and which may be sent to others in the Community Offering.
OTHER ELIGIBLE MEMBERS means those Persons, other than Eligible Account
Holders and Supplemental Eligible Account Holders, who are eligible to
purchase Common Shares pursuant to this Plan by reason of being Voting
Members.
OTS means the Office of Thrift Supervision, an agency of the United States
Government.
PERSON means an individual, a corporation, a partnership, an association, a
joint-stock company, a trust, any unincorporated organization, or a
government or political subdivision thereof.
PROSPECTUS means the document describing the terms and conditions of the
Subscription Offering and the Community Offering, including a complete
description of the business and affairs of Market and the Holding Company.
PROXY means the form of authorization by which a Person is, or may be
deemed to be, designated to act for a Voting Member in the exercise of his
or her voting rights in the affairs of Market.
PROXY MATERIALS means the Notice of Special Meeting, the Proxy Statement
and the form of Proxy used in connection with soliciting Proxies from
Members for use at the Special Meeting.
PURCHASE PRICE means the actual uniform price per share at which Common
Shares will be sold in the Subscription Offering and may be offered in the
Community Offering. Such price shall be based upon the appraised estimated
pro forma market value of such shares, determined as provided in Section 4
of this Plan.
QUALIFYING DEPOSIT means the aggregate balance of all Savings Accounts
owned by an Eligible Account Holder or a Supplemental Eligible Account
Holder at the close of business on the Eligibility Record Date or the
Supplemental Eligibility Record Date, respectively; provided, however, that
Savings Accounts with aggregate deposit balances of less than $50 will not
constitute Qualifying Deposits.
RESIDENT means any person who, on the Voting Record Date, maintains a bona
fide residence within Hamilton County, Ohio, as determined in the sole
discretion of Market and the Holding Company.
SEC means the Securities and Exchange Commission, an agency of the United
States Government.
SAVINGS ACCOUNT has the same meaning as that specified in Title 12, Code of
Federal Regulations, Part 561, as in effect on the date this Plan is
adopted by the Board of Directors of Market, and includes certificates of
deposit.
SPECIAL MEETING means the meeting of the Voting Members of Market called
for the specific purpose of submitting this Plan to the Voting Members for
approval.
SUBSCRIPTION OFFERING means the offering of Common Shares to the holders of
Subscription Rights.
SUBSCRIPTION RIGHTS means the nontransferable rights issued by Market to
the Eligible Account Holders, the Tax-Qualified Employee Stock Benefit
Plans, Supplemental Eligible Account Holders and Other Eligible Members to
purchase Common Shares in the Subscription Offering pursuant to this Plan.
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SUPPLEMENTAL ELIGIBILITY RECORD DATE means the record date used for
determining Supplemental Eligible Account Holders. Such date will be the
last day of the calendar quarter preceding the approval of the Application
by the OTS.
SUPPLEMENTAL ELIGIBLE ACCOUNT HOLDER means any person holding a Qualifying
Deposit at the close of business on the Supplemental Eligibility Record
Date, except Officers and directors of Market and the Holding Company and
their Associates.
TAX-QUALIFIED EMPLOYEE STOCK BENEFIT PLAN means any defined benefit plan or
defined contribution plan of the Holding Company or Market, such as an
employee stock ownership plan, stock bonus plan, profit sharing plan or
other plan which, with its related trust, meets the requirements for
qualification under Section 401 of the Internal Revenue Code of 1986, as
amended.
VOTING MEMBER means any Member of Market eligible to vote at the Special
Meeting.
VOTING RECORD DATE means the record date fixed by the Board of Directors of
Market in accordance with Ohio law and the Articles of Incorporation and
Constitution of Market for determining the eligibility of Members to vote
on this Plan at the Special Meeting.
PROCEDURES FOR THE CONVERSION.
The following procedures will be followed to effect the Conversion:
(a) Promptly after the adoption of this Plan by a vote of at least
two-thirds of the members of the Board of Directors of Market, Market will
publish a notice of the adoption of this Plan in an English language
newspaper having general circulation in each community in which an office
of Market is located. Copies of such notice will also be made available
for inspection by Members at the office of Market.
(b) The Holding Company will be incorporated under Ohio law, after
which the Board of Directors of the Holding Company will consent to the
Plan by at least a two-thirds vote.
(c) Market will submit this Plan for approval, together with all
other requisite materials, to the OTS and the Division in the form of the
Application.
(d) After the filing of the Application with the OTS and the
Division, Market (i) will prominently post in the office of Market and
publish in an English language newspaper having general circulation in the
community in which the office of Market is located a notice to the effect
that Market has filed the Application with the OTS, and (ii) when advised
by the Division, will prominently post in the office of Market and publish
in an English language newspaper having general circulation in the
community in which the office of Market is located a notice to the effect
that Market has filed the Application with the Division.
(e) After the OTS and the Division approve the Application, Market
will mail Proxy Materials to each of the Voting Members as of the Voting
Record Date at their last known addresses appearing on the records of
Market for the purpose of soliciting the Proxies of Voting Members for use
at the Special Meeting. The approval of this Plan will require the
affirmative vote, cast in person or by Proxy, of a majority of the total
outstanding votes entitled to be cast at the Special Meeting.
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(f) Subject to the approval of this Plan by the Voting Members at the
Special Meeting, the following will occur:
(i) Common Shares will be offered simultaneously to the Eligible
Account Holders, the Tax-Qualified Employee Stock Benefit Plans, the
Supplemental Eligible Account Holders and the Other Eligible Members
in the respective priorities set forth in Sections 5, 6, 7 and 8 of
this Plan. All sales of Common Shares to Eligible Account Holders,
the Tax-Qualified Employee Stock Benefit Plans, Supplemental Eligible
Account Holders and Other Eligible Members will be completed at the
earliest practicable date following expiration of the Subscription
Rights provided for in this Plan. Notwithstanding anything in this
Plan to the contrary, Market, in its sole discretion, may commence the
Subscription Offering concurrently with or at any time after the
mailing to the Voting Members of the Proxy Materials and may complete
the Subscription Offering before the Special Meeting if the completion
of the offer and sale of the Common Shares is conditioned upon the
approval of this Plan by the Voting Members. In the event that Market
elects, in its discretion, to commence the Subscription Offering after
the Special Meeting, the Subscription Offering will be commenced not
later than 45 days after the date on which the Special Meeting is
adjourned, except as may otherwise be approved by the OTS.
(ii) Concurrently with, following the commencement of or
following the completion of the Subscription Offering, Market may also
offer Common Shares in the Community Offering, subject to the prior
satisfaction of the Subscription Rights of the Eligible Account
Holders, Tax-Qualified Employee Stock Benefit Plans, Supplemental
Eligible Account Holders and Other Eligible Members.
(g) All other steps considered necessary or desirable by the Boards
of Directors of Market and the Holding Company to effect the Conversion
will be taken pursuant to applicable laws and regulations.
4. PURCHASE PRICE OF COMMON SHARES AND NUMBER OF COMMON SHARES TO BE OFFERED
IN CONNECTION WITH THE CONVERSION.
The Purchase Price will be determined by the Boards of Directors of Market
and the Holding Company before the commencement of the Subscription Offering,
subject to adjustment as described below. The number of Common Shares to be
sold in connection with the Conversion will be determined by the Boards of
Directors of Market and the Holding Company before the completion of all sales
of Common Shares contemplated by this Plan on the basis of the estimated pro
forma market value of Market, as converted, and the Purchase Price. No
fractional shares will be issued in connection with the Conversion.
The estimated pro forma market value of Market, as converted, will be
determined by the Independent Appraiser, based upon such factors as the
Independent Appraiser deems appropriate and as are consistent with the
regulations of the OTS and the Division. Immediately before the commencement of
the Subscription Offering, a range will be established for the aggregate
Purchase Price of Common Shares to be offered in the Subscription Offering and
the Community Offering. The maximum of such range shall be 15% above the pro
forma market value of Market, and the minimum of such range shall be 15% below
the pro forma market value of Market. The Independent Appraiser will review,
from time to time as appropriate, or as required by law or regulation,
developments subsequent to its valuation to determine whether the estimated pro
forma market value of Market, as converted, should be revised. If, after the
commencement of the Subscription Offering, the Independent Appraiser determines
that the estimated pro forma market value of Market, as converted, has increased
or decreased due to subsequent developments, the Conversion may be completed
without notifying Persons who have subscribed for Common Shares and without a
resolicitation of subscriptions from such Persons if such pro forma market value
is not less than the minimum of the valuation range approved by the OTS and the
Division and does not exceed the maximum point of the valuation range by more
than 15%. If, however, as a result of any such change, the estimated pro forma
market value of Market is less than the minimum of the valuation range or
exceeds the maximum point of such valuation range by more than 15%, a new
estimated pro forma market valuation range may be established, and the Board of
Directors may, with the approval of the OTS and the Division, elect to increase
or decrease the number of Common Shares to be sold in connection with the
Conversion or increase or decrease the Purchase Price, in which case Persons who
have subscribed for Common Shares will be notified and will be given the
opportunity to increase, decrease or rescind their subscription.
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5.. SUBSCRIPTION RIGHTS OF ELIGIBLE ACCOUNT HOLDERS.
Eligible Account Holders will have the following rights to subscribe for
and to purchase Common Shares:
(a) Each Eligible Account Holder will receive, without payment, a
nontransferable Subscription Right to purchase a number of Common Shares up
to the greater of (i) the amount which may be purchased in the Community
Offering, (ii) .10% of the total number of Common Shares to be sold in
connection with the Conversion, or (iii) 15 times the product (rounded
down to the next whole number) obtained by multiplying the total number of
Common Shares to be sold in connection with the Conversion by a fraction
the numerator of which is the amount of the Eligible Account Holder's
Qualifying Deposit and the denominator of which is the total amount of
Qualifying Deposits of all Eligible Account Holders, in each case on the
Eligibility Record Date, subject to the overall purchase limitations set
forth in Section 10 of this Plan and subject to adjustment by the Boards of
Directors of Market and the Holding Company as set forth in Section 10 of
this Plan.
(b) In the event that subscriptions for Common Shares are received
from Eligible Account Holders upon the exercise of Subscription Rights
pursuant to paragraph (a) of this Section 5 in excess of the number of
Common Shares available for such subscriptions, the Common Shares available
for purchase will be allocated among the subscribing Eligible Account
Holders in a manner by which each subscribing Eligible Account Holder, to
the extent possible, will be permitted to subscribe for a number of shares
sufficient to make such Eligible Account Holder's total allocation of
Common Shares equal to the lesser of (i) 100 shares and (ii) the number of
shares subscribed for by such Eligible Account Holder. Any shares
remaining after such allocation will be allocated among the subscribing
Eligible Account Holders whose subscriptions remain unsatisfied in the
proportion which the amount of each Eligible Account Holder's Qualifying
Deposit bears to the total of the Qualifying Deposits of all subscribing
Eligible Account Holders. No fractional shares will, however, be issued in
connection with the Conversion.
(c) Subscription Rights held by Eligible Account Holders who are also
Officers or directors of Market or the Holding Company, and their
Associates, to the extent that they are attributable to increased deposits
during the one-year period preceding the Eligibility Record Date, will be
subordinated to the Subscription Rights of all other Eligible Account
Holders.
(d) The Subscription Rights of the Eligible Account Holders will be
subordinate to the limited priority rights of the Tax-Qualified Employee
Stock Benefit Plans of Market as set forth in Section 6 of this Plan.
6. SUBSCRIPTION RIGHTS OF TAX-QUALIFIED EMPLOYEE STOCK BENEFIT PLANS.
The Tax-Qualified Employee Stock Benefit Plans of Market will receive non-
transferable Subscription Rights to purchase up to 10% of the Common Shares
offered in connection with the Conversion, subject to adjustment by the Boards
of Directors of Market and the Holding Company as set forth in Section 10 of
this Plan. The Subscription Rights of the Tax-Qualified Employee Stock Benefit
Plans are subordinate to the Subscription Rights of the Eligible Account Holders
pursuant to Section 5 of this Plan, except that if the final pro forma market
value of Market exceeds the maximum of the valuation range determined pursuant
to Section 4 of this Plan, the employee stock ownership plan to be adopted by
the Holding Company in connection with the Conversion shall have first priority
with respect to the amount of Common Shares sold in excess of the maximum of the
valuation range.
7. SUBSCRIPTION RIGHTS OF SUPPLEMENTAL ELIGIBLE ACCOUNT HOLDERS.
Supplemental Eligible Account Holders will have the following rights to
subscribe for and to purchase Common Shares:
(a) Each Supplemental Eligible Account Holder will receive, without
payment, a nontransferable Subscription Right to purchase a number of
Common Shares up to the greater of (i) the amount which may be purchased in
the Community Offering, (ii) .10% of the total number of Common Shares to
be sold in connection with the Conversion, or (iii) 15 times the product
(rounded down to the next whole number) obtained by multiplying the total
number of Common shares to be sold in connection with the Conversion by a
fraction the
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numerator of which is the amount of the Supplemental Eligible Account
Holder's Qualifying Deposit and the denominator of which is the total
amount of Qualifying Deposits of all Supplemental Eligible Account Holders,
in each case on the Supplemental Eligibility Record Date, subject to the
overall purchase limitations set forth in Section 10 of this Plan and
subject to adjustment by the Boards of Directors of Market and the Holding
Company as set forth in Section 10 of this Plan.
(b) In the event that subscriptions for Common Shares are received
from Supplemental Eligible Account Holders upon the exercise of
Subscription Rights pursuant to paragraph (a) of this Section 7 in excess
of the number of Common Shares available for such subscriptions, the Common
Shares available for purchase will be allocated among the subscribing
Supplemental Eligible Account Holders in a manner by which each subscribing
Supplemental Eligible Account Holder, to the extent possible, will be
permitted to subscribe to a number of Common Shares sufficient to make such
Supplemental Eligible Account Holder's total allocation of Common Shares
equal to the lesser of (i) 100 shares and (ii) the number of Common Shares
subscribed for by such Supplemental Eligible Account Holder. Any Common
Shares remaining after such allocation will be allocated among the
subscribing Supplemental Eligible Account Holders whose subscriptions
remain unsatisfied in the proportion which the amount of each such
Supplemental Eligible Account Holder's Qualifying Deposit bears to the
total amount of the Qualifying Deposits of all such subscribing
Supplemental Eligible Account Holders. No fractional shares will be
issued, however, in connection with the Conversion.
(c) Subscription Rights received pursuant to this Section 7 will be
subordinate to all the Subscription Rights of Eligible Account Holders and
the Tax-Qualified Employee Stock Benefit Plans pursuant to Sections 5 and 6
of this Plan. Any Subscription Rights received by an Eligible Account
Holder pursuant to Section 5 of this Plan will be applied in partial
satisfaction of Subscription Rights received pursuant to this Section 7.
8. SUBSCRIPTION RIGHTS OF OTHER ELIGIBLE MEMBERS.
Other Eligible Members will have the following rights to subscribe for and
to purchase Common Shares:
(a) Each Other Eligible Member will receive, without payment, a
nontransferable Subscription Right to purchase a number of Common Shares up
to the greater of (i) the amount of Common Shares which may be purchased in
the Community Offering and (ii) .10% of the total number of Common Shares
to be sold in connection with the Conversion, subject to adjustment by the
Boards of Directors of Market and the Holding Company as set forth in
Section 10 of this Plan.
(b) In the event that subscriptions for Common Shares are received
from Other Eligible Members upon the exercise of Subscription Rights
pursuant to paragraph (a) of this Section 8 in excess of the number of
Common Shares available for such subscriptions, the Common Shares available
for purchase will be allocated among the subscribing Other Eligible Members
in the same proportion that their respective subscriptions bear to the
aggregate subscriptions of all Other Eligible Members; provided, however,
that, to the extent sufficient Common Shares are available, each
subscribing Other Eligible Member shall be permitted to purchase 25 Common
Shares before the remaining available Common Shares are allocated.
(c) Subscription Rights received by Other Eligible Members pursuant
to this Section 8 will be subordinate to all the Subscription Rights
Eligible Account Holders, the Tax-Qualified Employee Stock Benefit Plans
and Supplemental Eligible Account Holders received pursuant to Sections 5,
6 and 7 of this Plan.
9. COMMUNITY OFFERING.
Concurrently with or at any time after the commencement or completion of
the Subscription Offering, the Holding Company may offer Common Shares in the
Community Offering in accordance with the following procedures and conditions:
(a) Any Common Shares not subscribed for in the Subscription Offering
may be offered and sold in the Community Offering. If conducted, the
Community Offering will be conducted in a manner which will give
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Community Members a preference in the purchase of Common Shares and will
seek to achieve the widest distribution of Common Shares.
(b) The maximum number of Common Shares which may be subscribed for
or purchased in the Community Offering by any Person, together with any
Associates or group of Persons Acting in Concert, will be 2% of the Common
Shares sold in connection with the Conversion, subject to the overall
purchase limitations set forth in Section 10 of this Plan and subject to
adjustment by the Boards of Directors of Market and the Holding Company as
set forth in Section 10 of this Plan.
(c) Orders for Common Shares in the Community Offering will first be
filled up to a maximum of 2% of the Common Shares sold in connection with
the Conversion and thereafter any remaining shares will be allocated on an
equal number of shares per order basis until all orders for Common Shares
have been filled, subject to the limitations provided in Section 10 of this
Plan.
(d) Market or the Holding Company may retain a Broker to assist in
selling the Common Shares in the Community Offering.
(e) Market and the Holding Company reserve the right to reject, in
whole or in part, any order to purchase Common Shares from any Person in
the Community Offering.
10. ADDITIONAL LIMITATIONS ON PURCHASES
The minimum number and maximum number of Common Shares which may be
subscribed for or purchased in connection with the Conversion are as follows:
(a) A minimum of 25 Common Shares must be purchased by each Person
purchasing Common Shares in connection with the Conversion to the extent
Common Shares are available; provided, however, that if the Purchase Price
is greater than $20 per share, the minimum number of Common Shares to which
a Person may subscribe will be adjusted in a manner by which the aggregate
Purchase Price required to be paid for such minimum number of Common Shares
does not exceed $500. No fractional shares will be issued, however, in
connection with the Conversion.
(b) Eligible Account Holders, Supplemental Eligible Account Holders
and Other Eligible Members may purchase Common Shares in the Community
Offering subject to the purchase limitations set forth in Section 9 of this
Plan; provided, however, that the maximum number of Common Shares which may
be subscribed for or purchased in connection with the Conversion by any
Person, together with any Associate or group of Persons Acting in Concert,
will be 4% of the Common Shares sold in connection with the Conversion,
except that any one or more of the Tax-Qualified Employee Stock Benefit
Plans may purchase in the aggregate not more than 10% of the Common Shares
sold in connection with the Conversion and will be entitled to purchase
such amount regardless of the number of Common Shares purchased by other
Persons. Common Shares held by one or more Tax-Qualified Employee Stock
Benefit Plans or non-tax-qualified employee stock benefit plans and
attributed to a Person will not be aggregated with Common Shares purchased
directly by or otherwise attributable to such Person. For the purpose of
this Section 10, the members of the Boards of Directors of Market and the
Holding Company will not be deemed to be Associates or a group of Persons
Acting in Concert solely as a result of their membership on such Boards of
Directors.
(c) The maximum number of Common Shares which may be subscribed for
or purchased in connection with the Conversion by Officers and directors of
Market and their Associates, will not exceed, in the aggregate, 35% of the
total number of Common Shares. Common Shares held by one or more Tax-
Qualified Employee Stock Benefit Plans or non-tax-qualified employee stock
benefit plans and attributed to a Person will not be aggregated with Common
Shares purchased directly by or otherwise attributable to such Person.
(d) Subject to any required regulatory approval and the requirements
of applicable laws and regulations, but without further approval of the
Members, purchase limitations may be increased or decreased at the sole
discretion of the Boards of Directors of Market and the Holding Company at
any time. If such amount is
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increased, persons who subscribed for the maximum amount will be given the
opportunity to increase their subscriptions up to the then applicable
limit, subject to the rights and preferences of any person who has priority
Subscription Rights. The Boards of Directors of Market and the Holding
Company may, in their sole discretion, increase such maximum purchase
limitation up to 9.99%; provided, however, that orders for Common Shares
exceeding 5% of the Common Shares to be sold in connection with the
Conversion shall not exceed, in the aggregate, 10% of the Common Shares to
be sold in connection with the Conversion. In the event that the purchase
limitation is decreased after commencement of the Subscription Offering,
the order of any Person who subscribed for the maximum number of Common
Shares shall be decreased by the minimum amount necessary so that such
Person shall be in compliance with the then maximum number of Common Shares
permitted to be subscribed for by such Person. The maximum purchase
limitation for Eligible Account Holders, Supplemental Eligible Account
Holders and Other Eligible Members shall not be decreased below 1% of the
total number of Common Shares to be issued in connection with the
Conversion.
(e) The Subscription Rights granted under this Plan are
nontransferable. Each Subscription Right may be exercised only by the
Person to whom it is issued and only for such Person's own account. Each
Person exercising Subscription Rights will be required to certify that he
or she is purchasing for his or her own account and that he or she has no
agreement or understanding for the sale or transfer of the stock to which
he or she subscribes. The Board of Directors of Market may reject any
subscription which such Board reasonably believes involves an impermissible
transfer of a Subscription Right. The Board of Directors of Market may
require any Person who the Board reasonably believes to be involved in an
impermissible transfer of a Subscription Right to provide such information
or assurances as the Board may request to verify the validity of a
Subscription Right.
11. PROCEDURES FOR THE SUBSCRIPTION OFFERING AND THE COMMUNITY OFFERING.
The Subscription Offering and the Community Offering shall be conducted in
the following manner:
(a) Prior to the commencement of the Subscription Offering, the
Holding Company will file a registration statement with the SEC. No
Prospectus may be distributed to Persons who have Subscription Rights or to
Community Members or to any other person who is not a participant in the
preparation of the Prospectus until and unless the SEC has declared the
Prospectus effective.
(b) At the time the Proxy Materials are mailed to Voting Members at
their last known addresses appearing on the records of Market, pursuant to
the authorization of the OTS and the Division, Market and the Holding
Company may commence the Subscription Offering and the Community Offering.
(c) The Prospectus will contain all the information required by the
OTS, the Division, the SEC and all applicable laws and regulations
necessary to enable the recipients of the Order Forms to make informed
investment decisions regarding the purchase of Common Shares.
(d) The Order Forms will contain all the information required by the
OTS and all applicable laws and regulations.
(e) The offer of Common Shares to Persons who have Subscription
Rights, to Community Members and to others will be conditioned upon the
approval of this Plan by the Voting Members at the Special Meeting.
(f) Orders for Common Shares received in the Subscription Offering
and the Community Offering will first be filled, in the order of priority
set forth in this Plan, by the orders of Persons holding Subscription
Rights.
(g) The Subscription Offering and the Community Offering may be
closed before the Special Meeting.
12. PAYMENT FOR COMMON SHARES.
Common Shares will be paid for in accordance with the following procedure:
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(a) Full payment for all Common Shares subscribed for must be
received by Market, together with properly completed and executed Order
Forms therefor, before the expiration time, which will be specified on the
Order Forms, unless such date is extended by Market. Photocopied or
telecopied Order Forms will not be accepted. The amount of such required
payment will be the amount which equals the Purchase Price (which will be
specified in the Order Forms or accompanying materials), multiplied by the
number of Common Shares subscribed for in accordance with the terms of this
Plan.
(b) Payment for Common Shares ordered in the Subscription Offering
will be permitted to be made:
(i) In cash, if delivered in person;
(ii) By check, bank draft, money order or negotiable order of
withdrawal; provided, however, that checks will be accepted subject to
payment and payment, as to any check, will be deemed received upon
first presentation of such check to the drawee of such check; or
(iii) By appropriate authorization of withdrawal from any
Savings Account at Market.
For the purpose of determining the withdrawal balance of any Savings
Account, such withdrawals will be deemed to have been made upon receipt of
appropriate authorization therefor, but interest at the rates applicable to
such accounts will be paid by Market on the amounts deemed to have been
withdrawn until the date on which the Conversion is completed or
terminated, at which time the authorized withdrawal actually will be made.
Interest will be paid by Market on payments for Common Shares paid in cash
or by check, negotiable order of withdrawal or money order at an annual
rate equal to the passbook account rate at Market or such higher rate as
may be determined by Market. Such interest will be paid from the date
payments are received by Market until consummation or termination of the
Conversion.
(c) The Order Forms will contain appropriate means by which
authorization of withdrawals from Savings Accounts may be made to pay for
subscribed Common Shares. Once a withdrawal has been authorized, none of
the designated withdrawal amount may be withdrawn from the designated
Savings Account (except by Market as payment for Common Shares) while this
Plan remains in effect. Savings Accounts will be permitted to be
established for the purpose of making payment for subscribed Common Shares.
Notwithstanding any regulatory provisions regarding penalties for early
withdrawal from certificate accounts and minimum qualifying balances for
such accounts, payment for Common Shares will be permitted through
authorization of withdrawals from such accounts without the assessment of
such penalties. If, after such withdrawal, the applicable minimum balance
requirement ceases to be met, such certificate account will be canceled and
the remaining balance thereof will earn interest only at the passbook
account rate at Market.
(d) Market will not lend funds or otherwise extend credit to any
Person to purchase Common Shares.
13. EXPIRATION OF SUBSCRIPTION RIGHTS; UNDELIVERED, DEFECTIVE OR LATE ORDER
FORMS; INSUFFICIENT PAYMENT.
Subscription Rights will expire or terminate in accordance with the
following:
(a) All Subscription Rights provided for in this Plan, including
without limitation the Subscription Rights of all Persons whose Order Forms
are returned by the United States Post Office as undeliverable, will expire
at a specified time on a specified date which will be not less than 20 days
nor more than 45 days following the date on which Order Forms are first
sent to Eligible Account Holders, Supplemental Eligible Account Holders and
Other Eligible Members; provided, however, that Market will have the power
to extend such expiration time in its discretion only for a reasonable time
beyond such 45-day period.
(b) If Market is unable to locate particular persons granted
Subscription Rights under this Plan, or if Order Forms (i) are returned as
undeliverable by the United States Post Office, (ii) are not received by
Market prior to the expiration date specified thereon, (iii) are
defectively filled out or executed, or (iv) are not, when received by
Market, accompanied by the full required payment for the Common Shares
subscribed for (including cases in which Savings Accounts from which
withdrawals are authorized contain insufficient funds to satisfy the
required payment or the check, bank draft, negotiable order of withdrawal
or money order is not presented to the drawee
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thereof by the expiration time), the Subscription Rights will lapse as
though the Person to whom such rights have been granted failed to return
the completed Order Form within the time period specified thereon. In any
such case as discussed in this paragraph (b), all payments accompanying the
Order Forms will be refunded and, in the case of payments authorized
through withdrawal from Savings Accounts as permitted by Section 12 of this
Plan, such withdrawals will not be made.
(c) Market may, but will not be obligated to, waive any irregularity
on any Order Form or require the submission of a corrected Order Form or
waive the remittance of full payment for shares subscribed for by such date
as it may specify. An executed Order Form, once received by Market, may
not be modified, amended or rescinded without the consent of Market prior
to the expiration of the 45-day period, and any extensions thereof,
following termination of the Subscription Offering. Subject to the
authority of the OTS and the Division, all interpretations by Market and
the Holding Company of the terms and conditions of this Plan and of the
Order Forms will be final.
(d) The sale of all Common Shares must be completed within 45 days
after the termination of the Subscription Offering, unless extended by
Market with the consent of the OTS and the Division, and within 24 months
of approval of this Plan by the Voting Members at the Special Meeting. The
24-month period may not be extended by Market, the OTS or the Division.
14. COMPLIANCE WITH SECURITIES LAWS.
Market and the Holding Company will make reasonable efforts to comply with
the securities laws of the United States and all other jurisdictions in which
Eligible Account Holders, Supplemental Eligible Account Holders and Other
Eligible Members reside. No person, however, will be offered any Subscription
Rights or sold any Common Shares under this Plan if such Person resides in a
foreign country or in any jurisdiction of the United States in respect of which
(a) the granting of Subscription Rights or the offer or sale of Common Shares
under this Plan to such persons would require Market, the Holding Company or
their directors, Officers or employees to register under the securities laws of
such jurisdiction as a Broker, Dealer or agent or to register or otherwise
qualify the Common Shares for sale in such state or (b) Market determines that
compliance with the securities laws of such jurisdiction would be impracticable
for reasons of cost or otherwise. No payments will be made in lieu of the
granting of Subscription Rights to such persons.
15. RIGHTS OF SHAREHOLDERS AFTER COMPLETION OF CONVERSION.
After the Conversion, the Holding Company will be the sole shareholder of
Market and will exercise all rights attendant to owning the shares of Market.
Persons owning common shares of the Holding Company will have the following
rights after the Conversion:
(a) Voting rights in respect of the Holding Company will be held
and exercised exclusively by the holders of the issued and outstanding
common shares of the Holding Company. Neither borrowers from Market nor
holders of Savings Accounts in Market will have any voting rights in Market
or the Holding Company on the basis of such borrowings or Savings Accounts.
(b) The shareholders of the Holding Company will have the
exclusive rights, subject to the rights of Eligible Account Holders and
Supplemental Eligible Account Holders in the Liquidation Account provided
for in Section 16 of this Plan, to receive the distribution of any assets
remaining after payment of creditors' claims, including the claims of
Savings Account holders to the withdrawal value of their accounts, in the
event of any voluntary or involuntary liquidation of Market after the
Conversion.
16. ESTABLISHMENT OF LIQUIDATION ACCOUNT.
A Liquidation Account will be established on the effective date of the
Conversion in accordance with the following:
(a) For purposes of granting a limited priority claim to the assets
of Market in the event of a complete liquidation thereof to Eligible
Account Holders and Supplemental Eligible Account Holders who continue to
maintain a Savings Account at Market after the Conversion, Market will, at
the time of Conversion, establish the Liquidation Account in an amount
equal to the regulatory capital of Market as set forth in its latest
statement
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of financial condition contained in the Prospectus for the sale of Common
Shares. The Liquidation Account will not operate to restrict the use or
application of any of the regulatory capital of Market.
(b) Each Eligible Account Holder and Supplemental Eligible Account
Holder will have a separate inchoate interest in a portion of the
Liquidation Account for each Savings Account making up such account
holder's Qualifying Deposit (hereinafter referred to as the "Subaccount").
(c) The initial balance of each Subaccount will be an amount
determined by multiplying the amount in the Liquidation Account by a
fraction, the numerator of which is the amount of the account holder's
Qualifying Deposits as of the close of business on the Eligibility Record
Date or the Supplemental Eligibility Record Date, as the case may be, and
the denominator of which is the total amount of all Qualifying Deposits of
Eligible Account Holders and Supplemental Eligible Account Holders on the
corresponding record date. For Savings Accounts in existence on both the
Eligibility Record Date and the Supplemental Eligibility Record Date,
separate Subaccounts will be determined on the basis of the Qualifying
Deposits in such Savings Accounts on each such date. The balance of each
Subaccount will never be increased above the initial balance. If the
balance in the Savings Account to which a Subaccount relates, at the close
of business on the last day of each fiscal year of the Holding Company
subsequent to the respective record dates, is less than the lesser of (i)
the deposit balance in such Savings Account at the close of business on the
last day of each fiscal year of the Holding Company subsequent to the
Eligibility Record Date or Supplemental Eligibility Record Date or (ii) the
amount of the Qualifying Deposit as of the Eligibility Record Date or the
Supplemental Eligibility Record Date, the balance of the Subaccount for
such Savings Account will be adjusted proportionate to the reduction in
such Savings Account balance. In the event of any such downward
adjustment, such Subaccount balance will not be subsequently increased
notwithstanding any increase in the deposit balance of the related Savings
Account. If any Savings Account is closed, its related Subaccount will be
reduced to zero upon such closing. The Subaccount of an account holder
will be maintained for as long as the account holder maintains an account
with the same Social Security or tax identification number.
(d) In the event of a complete liquidation of the converted Market
(and only in such event), each Eligible Account Holder and Supplemental
Eligible Account Holder will be entitled to receive from the Liquidation
Account a distribution equal to the current adjusted balance in each of
such account holder's Subaccounts before any liquidation distribution
may be made to any holders of the capital stock of Market. No merger,
consolidation, sale of bulk assets or similar combination or transaction
with another savings association, the accounts of which are insured by the
FDIC, will be deemed to be a complete liquidation for this purpose and, in
any such transaction, the Liquidation Account will be assumed by the
surviving insured institution.
17. ACCOUNTS IN CONVERTED ASSOCIATION.
Each Savings Account in Market at the time of the Conversion will constitute,
without payment or further action by the account holder, a Savings Account in
Market as converted, equal in withdrawable amount to the withdrawal value, and
subject to the same terms and conditions, except as to voting and liquidation
rights, as such Savings Account in Market immediately before the Conversion.
18. RESTRICTIONS ON PURCHASES AND SALES OF COMMON SHARES BY OFFICERS AND
DIRECTORS FOLLOWING CONVERSION.
Purchases and sales of shares of the Holding Company after the Conversion will
be restricted in accordance with the following:
(a) All Common Shares purchased by Officers or directors of the
Holding Company or Market or the Associates pursuant to this Plan will be
subject to the restriction that no such shares will be sold for a period of
one year following the date of purchase of such shares, except in the event
of the death of the Officer, director or Associate.
(b) With respect to all Common Shares subject to the restriction on
subsequent disposition pursuant to paragraph (a) of this Section 18, each
of the following provisions will apply:
(i) Each certificate representing such shares will bear the
following legend prominently stamped thereon giving notice of such
restriction on transfer:
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THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD BY THE
REGISTERED HOLDER HEREOF FOR A PERIOD OF NOT LESS THAN ONE YEAR
FROM THE DATE OF ISSUANCE HEREOF, EXCEPT IN THE EVENT OF THE
DEATH OF THE REGISTERED HOLDER OF SUCH SHARES.
(ii) Instructions will be given to the transfer agent for the
Holding Company, if any, not to recognize or effect any transfer of
any certificates representing such shares, or any change of record
ownership thereof in violation of such restriction on transfer; and
(iii) Any shares of capital stock of the Holding Company issued as
a stock dividend, stock split or otherwise with respect to outstanding
Common Shares subject to restrictions on transfer hereunder will be
subject to the same restrictions as are applicable to the Common
Shares with respect to which such shares of stock are issued.
(c) For a period of three years following the Conversion, no Officer
or director of Market or the Holding Company, or any Associates of such
Officer or director shall, without the prior written approval of the OTS,
purchase the capital stock of the Holding Company other than from a Broker
or Dealer registered with the SEC. This provision will not apply to (i)
negotiated transactions involving more than 1% of a class of outstanding
capital stock of the Holding Company or (ii) purchases of shares of capital
stock made by and held by any one or more tax-qualified or non-tax-qualified
employee stock benefit plans which may be attributable to individual
Officers or directors of the Holding Company or Market.
19. RESTRICTIONS ON ACQUISITION OF MARKET OR HOLDING COMPANY.
Acquisition of capital stock of Market or the Holding Company after
the Conversion will be subject to various restrictions contained in the Amended
Articles, the Articles of Incorporation of the Holding Company, the Amended
Constitution, the Code of Regulations of the Holding Company and various state
and federal laws and regulations. In addition, the Articles of Incorporation of
the Holding Company or the Amended Articles may include the limitation that, for
a period of up to five years from the date of completion of the Conversion of
Market from mutual to stock form, no Person may directly or indirectly offer to
acquire or acquire beneficial ownership of more than 10% of any class of an
equity security of Market or the Holding Company.
20. AMENDMENT OR TERMINATION OF THIS PLAN.
If deemed necessary or desirable by the Boards of Directors of
Market and the Holding Company, this Plan may be amended by the Boards of
Directors of Market and the Holding Company in their sole discretion at any
time prior to the solicitation of Proxies from Voting Members entitled to
vote on this Plan and at any time thereafter with the concurrence of the OTS
and the Division. The Conversion pursuant to this Plan may be terminated by
the Boards of Directors of Market and the Holding Company in their sole
discretion at any time prior to the Special Meeting and at any time
thereafter with the concurrence of the OTS and the Division.
21. CONSUMMATION OF CONVERSION.
The Conversion of the mutual Market into the stock Market will be
deemed to have taken place and to be effective at the time and date provided
in the regulations of the OTS and the Division. The Conversion must be
completed within 24 months of the approval of this Plan by the Members.
22. TAX RULINGS/OPINIONS.
The Conversion is expressly conditioned upon the prior receipt by
Market and the Holding Company of either rulings from the Internal Revenue
Service and the appropriate Ohio taxing authorities or opinions of legal
counsel or other tax advisors to Market in form and substance satisfactory to
Market and to the effect, among other things, that the Conversion will
constitute a tax-free "reorganization" as defined in Section 368(a) of the
Internal Revenue Code of 1986, as amended, and comparable provisions of
applicable state law, or that consummation of the transactions provided for
in this
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Plan will not otherwise result in any federal, state or other tax consequences
to Market or the converted Market deemed materially adverse by the Board of
Directors of Market or the Board of Directors of the Holding Company.
23. DIRECTORS AND OFFICERS OF MARKET.
It is not intended that the Conversion will result in any change in
the directors or Officers of Market. The persons serving as Officers on the
date the Application is filed with the OTS and the Division will continue to
serve at the discretion of the Board of Directors of Market in their
respective capacities as Officers of the converted Market. The persons
serving as directors of Market on the date the Application is filed with the
OTS and the Division will continue to serve as directors following the
Conversion until their terms expire or their earlier death, resignation or
removal from office.
24. STOCK BENEFIT PLANS.
Following the completion of the Conversion, Market or the Holding
Company may establish one or more stock option plans and management
recognition plans to the extent permitted by OTS regulations. Market and the
Holding Company may make scheduled or discretionary contributions to one or
more stock benefit plans maintained by Market or the Holding Company for the
benefit of the directors, Officers or employees of Market or the Holding
Company, provided such contributions do not cause Market to fail to meet its
regulatory capital requirement.
25. REGISTRATION OF COMMON SHARES; MARKET FOR COMMON SHARES.
(a) Before or promptly following the Conversion, the Holding Company
will register the Common Shares with the SEC pursuant to the Securities
Exchange Act of 1934 and will not deregister such shares for a period of
three years thereafter.
(b) While there is no assurance that an active market for the Common
Shares will develop following the Conversion, the Holding Company will use
its best efforts to encourage and assist a market maker to establish and
maintain a market for the Common Shares and will use its best efforts to
cause such shares to be quoted on The Nasdaq Stock Market (or any
comparable quotation system which may hereafter be developed) or listed on
a national or regional securities exchange.
26. EXPENSES OF CONVERSION.
Market and the Holding Company will use their best efforts to ensure
that the expenses incurred in connection with the Conversion will be
reasonable.
27. MAILING OF PROXY MATERIALS.
The Proxy Materials will only be sent to Voting Members as of the
Voting Record Date.
28. INTERPRETATION OF THE PLAN.
The Boards of Directors of Market and the Holding Company will
interpret this Plan. To the extent permitted by law, all interpretations of
this Plan by the Boards of Directors of Market and the Holding Company will
be final.
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EXHIBIT I
AMENDED
ARTICLES OF INCORPORATION
OF
THE MARKET BUILDING AND SAVING COMPANY
FIRST: The name of the corporation shall be The Market Building and
Saving Company.
SECOND: The place in Ohio where the principal office of the
corporation is to be located is Mt. Healthy, Hamilton County.
THIRD: The purposes for which the corporation is formed are to
raise money to be loaned to the public and to engage in any other lawful act or
activity for which corporations may be formed under Chapter 1151 of the Ohio
Revised Code.
FOURTH: The authorized capital of the corporation shall be
$10,000,000 divided into 10,000,000 shares, all of which shall be common shares,
$1.00 par value.
FIFTH: To the extent permitted by law, the directors of the
corporation shall have the power to cause the corporation from time to time and
at any time to purchase, hold, sell, transfer or otherwise deal with (A) shares
of any class or series issued by it, (B) any security or other obligation of the
corporation which may confer upon the holder thereof the right to convert the
same into shares of any class or series authorized by the articles of the
corporation and (C) any security or other obligation which may confer upon the
holder thereof the right to purchase shares of any class or series authorized by
the articles of the corporation. To the extent permitted by law, the
corporation shall have the right to repurchase, if and when any shareholder
desires to sell, or on the happening of any event is required to sell, shares of
any class or series issued by the corporation. The authority granted in this
Article Fifth of these articles shall not otherwise limit the authority of the
directors to purchase, hold, sell, transfer or otherwise deal with shares of any
class or series, securities, or other obligations issued by the corporation or
authorized by its articles.
SIXTH: No shareholder of the corporation shall have, as a matter of
right, the pre-emptive right to purchase or subscribe for shares of any class,
now or hereafter authorized, or to purchase or subscribe for securities or other
obligations convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for or purchase
any such share.
SEVENTH: No shareholder shall have the right to vote cumulatively in
the election of directors.
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EIGHTH: Until the expiration of five years from the date of the
acquisition by Market Financial Corporation of the capital stock of the
corporation to be issued in connection with the conversion of the corporation
from mutual to stock form, no Person (hereinafter defined) shall directly or
indirectly Offer (hereinafter defined) to Acquire (hereinafter defined) or
Acquire the Beneficial Ownership (hereinafter defined) of more than ten percent
(10%) of any class of any equity security of the corporation; provided, however,
that such prohibition shall not apply to the purchase of shares by underwriters
in connection with a public offering, or to the purchase of up to twenty five
percent (25%) of any class of equity security of the corporation by a
tax-qualified employee stock benefit plan. In the event that any shares of the
corporation are Acquired in violation of this Article Eighth, all shares
Beneficially Owned by any Person in excess of ten percent (10%) of any class of
equity security of the corporation shall not be counted as shares entitled to
vote, shall not be voted by any Person and shall not be counted as voting shares
in connection with any matter submitted to the shareholders for a vote. For
purposes of this Article Eighth, the following terms shall have the meaning set
forth below:
(A) "Person" includes an individual, a group acting in concert, a
corporation, a partnership, an association, a joint stock
company, a trust, an unincorporated organization or similar
company, a syndicate or any other group formed for the purpose of
acquiring or disposing of the equity securities of the
corporation, but does not include any employee stock benefit plan
of the corporation or subsidiary of the corporation.
(B) "Offer" includes every offer to buy or otherwise acquire,
solicitation of an offer to sell, tender offer for, or request or
invitation for tenders of, a security or interest in a security
for value.
(C) "Acquire" includes every type of acquisition, whether effected by
purchase, exchange, operation of law or otherwise.
(D) "Acting in concert" means (i) participation in a joint activity
or conscious parallel action towards a common goal, whether or
not pursuant to an express agreement, or (ii) a combination or
pooling of voting or other interests in the securities of an
issuer for a common purpose pursuant to any contract,
understanding, relationship, agreement or other arrangement,
whether written or otherwise.
(E) "Beneficial Ownership" shall include, without limitation, (i) all
shares directly or indirectly owned by a Person, by an Affiliate
(hereinafter defined) of such Person or by an Associate
(hereinafter defined) of such Person or such Affiliate, (ii) all
shares which such Person, Affiliate or Associate has the right to
acquire through the exercise of any option, warrant or right
(whether or not currently exercisable), through the conversion of
a security, pursuant to the power to revoke a trust,
discretionary account or similar arrangement, or pursuant to the
automatic termination of a trust, discretionary account or
similar arrangement, and (iii) all shares as to which such
Person, Affiliate or Associate directly or indirectly through any
contract, arrangement, understanding, relationship or otherwise
(including, without limitation, any written or unwritten
-16-
agreement to act in concert) has or shares voting power (which
includes the power to vote or to direct the voting of such
shares) or investment power (which includes the power to dispose
or to direct the disposition of such shares) or both.
(F) "Affiliate" shall mean a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with another Person.
(G) "Associate" of a Person shall mean (i) any corporation or
organization (other than the corporation or a subsidiary of the
corporation) of which the Person is an officer or partner or is,
directly or indirectly, the beneficial owner of ten percent or
more of any class of equity securities, (ii) any trust or other
estate, except any employee stock benefit plan, in which the
Person has a substantial beneficial interest or as to which the
Person serves as trustee or in a similar fiduciary capacity, and
(iii) any relative or spouse of the Person, or any relative of
such spouse, who has the same home as the Person or is a director
or officer of the corporation or any of its parents or
subsidiaries.
NINTH: These Amended Articles of Incorporation supersede the
existing articles of incorporation of the corporation.
-17-
EXHIBIT II
AMENDED
CONSTITUTION
OF
THE MARKET BUILDING AND SAVING COMPANY
ARTICLE ONE
SECTION 1. NAME. The name of this savings and loan association shall
be The Market Building and Saving Company (this "Association"), and the
principal office of this Association shall be located in Hamilton County, Ohio.
ARTICLE TWO
SECTION 1. PURPOSES. The purposes for which this Association is
formed are to raise money to be loaned to the public and to engage in any other
lawful act or activity for which corporations may be formed under Chapter 1151
of the Ohio Revised Code.
ARTICLE THREE
SECTION 1. AUTHORIZED SHARES. The authorized capital of this
Association shall be $10,000,00, divided into 10,000,000 shares, all of which
shall be common shares, $1.00 par value per share.
SECTION 2. REPURCHASE OF SHARES. This Association shall have the
power to repurchase its common shares to the fullest extent provided by law.
ARTICLE FOUR
SECTION 1. MEMBERS. Any person who subscribes for, or in any manner
according to law becomes the owner of, any of the common shares of this
Association shall be a member of this Association entitled to all of the
benefits and privileges and subject to all of the liabilities and duties
prescribed by this Amended Constitution, the Bylaws of this Association and the
laws of the State of Ohio.
SECTION 2. ANNUAL MEETINGS. The annual meeting of the shareholders
of this Association for the election of directors, the consideration of reports
to be laid before such meeting and the transaction of such other business as may
properly come before such meeting shall be held on the second Tuesday of January
in each year, at 2:45 P.M., or on such other date and at such other time as may
be fixed from time to time by the directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders of
this Association may be called only by the chairman of the board, president,
vice president, a majority of the members of the board of
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directors, or by persons who hold at least twenty-five percent of all shares
outstanding and entitled to vote thereat.
SECTION 4. PLACE OF MEETINGS. All meetings of shareholders of this
Association shall be held at the principal office of this Association, unless
otherwise provided by action of the directors. Meetings of shareholders may be
held at any place within or outside the State of Ohio.
SECTION 5. NOTICE OF MEETINGS.
(A) Written notice stating the time, place and purposes of a meeting
of the shareholders of this Association shall be given, by or at the direction
of the president or the secretary, either by personal delivery or by mail not
less than seven nor more than sixty days before the date of the meeting to each
shareholder of record entitled to notice of the meeting. If mailed, such notice
shall be addressed to the shareholder at his address as it appears on the
records of this Association. Notice of adjournment of a meeting need not be
given if the time and place to which it is adjourned are fixed and announced at
such meeting. In the event of a transfer of shares after the record date for
determining the shareholders who are entitled to receive notice of a meeting of
shareholders, it shall not be necessary to give notice to the transferee.
Nothing herein contained shall prevent the setting of a record date in the
manner provided by law, the amended articles of incorporation of this
Association (the "Amended Articles") or this Amended Constitution for the
determination of shareholders who are entitled to receive notice of or to vote
at any meeting of shareholders or for any purpose required or permitted by law.
(B) Following receipt by the president or the secretary of a request
in writing, specifying the purpose or purposes for which the persons properly
making such request have called a meeting of the shareholders, delivered either
in person or by registered mail to such officer by any persons entitled to call
a meeting of shareholders, such officer shall cause to be given to the
shareholders entitled thereto notice of a meeting to be held on a date not less
than seven nor more than sixty days after the receipt of such request, as such
officer may fix. If such notice is not given within fifteen days after the
receipt of such request by the president or the secretary, then, and only then,
the persons properly calling the meeting may fix the time of the meeting and
give notice thereof in accordance with the provisions of this Constitution.
SECTION 6. WAIVER OF NOTICE. Notice of the time, place and purpose
or purposes of any meeting of shareholders of this Association may be waived in
writing either before or after the holding of such meeting, by any shareholder,
which writing shall be filed with or entered upon the records of such meeting.
The attendance of any shareholder, in person or by proxy, at any such meeting
without protesting the lack of proper notice, prior to or at the commencement of
the meeting, shall be deemed to be a waiver by such shareholder of notice of
such meeting.
SECTION 7. QUORUM. At any meeting of shareholders of this
Association, the holders of a majority of the voting shares of this Association
then outstanding and entitled to vote thereat, present in person or by proxy,
shall constitute a quorum for such meeting. The holders of a majority of the
voting shares represented at a meeting, whether or not a quorum is present, or
the chairman of the board, the president, or the officer of the corporation
acting as chairman of the meeting, may adjourn such meeting from time to time,
and if a quorum is present at such adjourned meeting any business may be
transacted as if the meeting had been held as originally called.
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SECTION 8. VOTES REQUIRED. At all elections of directors the
candidates receiving the greatest number of votes shall be elected. Any other
matter submitted to the shareholders for their vote shall be decided by the vote
of such proportion of the shares, or of any class of shares, or of each class,
as is required by law, the Amended Articles or this Amended Constitution.
SECTION 9. ORDER OF BUSINESS. The order of business at any meeting
of shareholders shall be determined by the officer of this Association acting as
chairman of such meeting unless otherwise determined by a vote of the holders of
a majority of the voting shares of this Association then outstanding, present in
person or by proxy, and entitled to vote at such meeting.
SECTION 10. SHAREHOLDERS ENTITLED TO VOTE. Each shareholder of
record on the books of this Association on the record date for determining the
shareholders who are entitled to vote at a meeting of shareholders shall be
entitled at such meeting to one vote for each share of this Association standing
in his name on the books of this Association on such record date. The directors
may fix a record date for the determination of the shareholders who are entitled
to receive notice of and to vote at a meeting of shareholders, which record date
shall not be a date earlier than the date on which the record date is fixed and
which record date may be a maximum of sixty days preceding the date of the
meeting of shareholders.
SECTION 11. PROXIES. At meetings of the shareholders, any
shareholder of record entitled to vote thereat may be represented and may vote
by a proxy or proxies appointed by an instrument in writing signed by such
shareholder, but such instrument shall be filed with the secretary of the
meeting before the person holding such proxy shall be allowed to vote
thereunder. No proxy shall be valid after the expiration of eleven months after
the date of its execution, unless the shareholder executing it shall have
specified therein the length of time it is to continue in force.
SECTION 12. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders of this Association, the directors may appoint one or more
inspectors of election to act at such meeting or any adjournment thereof; if
inspectors are not so appointed, the officer of this Association acting as
chairman of any such meeting may make such appointment. In case any person
appointed as inspector fails to appear or act, the vacancy may be filled only by
appointment made by the directors in advance of such meeting or, if not so
filled, at the meeting by the officer of this Association acting as chairman of
such meeting. No other person or persons may appoint or require the appointment
of inspectors of election.
ARTICLE FIVE
DIRECTORS
SECTION 1. AUTHORITY AND QUALIFICATIONS. Except where the law, the
Amended Articles or this Amended Constitution otherwise provide, all authority
of this Association shall be vested in and exercised by its directors.
Directors need not be shareholders of this Association.
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SECTION 2. NUMBER OF DIRECTORS AND TERM OF OFFICE.
(A) Until changed in accordance with the provisions of this Amended
Constitution, the number of directors of this Association shall be five (5).
Each director shall be elected to serve a term of one (1) year and until his
successor is duly elected and qualified or until his earlier resignation,
removal from office or death.
(B) The number of directors may be fixed or changed, but in no event
to fewer than five (5) or more than seven (7) directors, by the directors or by
the shareholders at a meeting of the shareholders of this Association called for
the purpose of electing directors at which a quorum is present, only by the
affirmative vote of the holders of not less than a majority of the voting shares
which are represented at the meeting, in person or by proxy, and entitled to
vote on such proposal.
(C) The directors may fill any director's office that is created by
an increase in the number of directors.
(D) No reduction in the number of directors shall of itself have the
effect of shortening the term of any incumbent director.
SECTION 3. NOMINATION AND ELECTION.
(A) Any nominee for election as a director of this Association may be
proposed only by the directors or by any shareholder entitled to vote for the
election of directors. No person, other than a nominee proposed by the
directors, may be nominated for election as a director of this Association
unless such person shall have been proposed in a written notice, delivered or
mailed by first-class United States mail, postage prepaid, to the secretary of
this Association at the principal offices of this Association. In the case of a
nominee proposed for election as a director at an annual meeting of
shareholders, such written notice of a proposed nominee shall be received by the
secretary of this Association not later than the close of business on the
fourteenth calendar day preceding such annual meeting. In the case of a nominee
proposed for election as a director at a special meeting of shareholders at
which directors are to be elected, such written notice of a proposed nominee
shall be received by the secretary of this Association not later than the close
of business on the fourteenth calendar day preceding such special meeting.
Each such written notice of a proposed nominee shall set forth (i) the
name, age, business or residence address of each nominee proposed in such
notice, (ii) the principal occupation or employment of each such nominee, and
(iii) the number of common shares of this Association owned beneficially and/or
of record by each such nominee and the length of time any such shares have been
so owned.
(B) If a shareholder shall attempt to nominate one or more persons
for election as a director at any meeting at which directors are to be elected
without having identified each such person in a written notice given as
contemplated by, and/or without having provided therein the information
specified in, subparagraph (A) of this Section 3, each such attempted nomination
shall be invalid and shall be disregarded unless the person acting as chairman
of the meeting determines that the facts warrant the acceptance of such
nomination.
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(C) The election of directors shall be by ballot whenever requested
by the person acting as chairman of the meeting or by the holders of a majority
of the outstanding shares entitled to vote at such meeting and present in person
or by proxy, but unless such request is made, the election shall be by voice
vote.
SECTION 4. REMOVAL. A director or directors may be removed from
office, with or without assigning any cause, only by the vote of the holders of
shares entitling them to exercise not less than 75% of the voting power of this
Association to elect directors in place of those to be removed. In case of any
such removal, a new director may be elected at the same meeting for the
unexpired term of each director removed. Failure to elect a director to fill
the unexpired term of any director removed shall be deemed to create a vacancy
in the board.
SECTION 5. VACANCIES. Vacancies in the board may be filled in the
manner provided by law, the Amended Articles or this Amended Constitution. The
directors shall have the right to fill all vacancies occurring in the board for
the unexpired term.
SECTION 6. MEETINGS. A meeting of the directors shall be held
immediately following the adjournment of each annual meeting of shareholders of
this Association at which directors are elected, and notice of such meeting need
not be given. The directors shall hold a regular meeting at least once each
month at a day and hour fixed by resolution of the board and may hold such other
meetings as may from time to time be called. Such meetings of directors may be
called only by the chairman of the board, the president, or directors. Meetings
of the directors may be held through any communications equipment if all persons
participating can hear each other, and participation in a meeting pursuant to
this provision shall constitute presence at such meeting.
SECTION 7. NOTICE OF MEETINGS. Notice of the time and place of each
meeting of directors for which such notice is required by law, the Amended
Articles, this Amended Constitution or the Bylaws shall be given to each of the
directors by at least one of the following methods:
(A) In a writing mailed not less than three days before such meeting
and addressed to the residence or usual place of business of a director, as such
address appears on the records of the corporation; or
(B) By telegraph, facsimile or a writing sent or delivered to the
residence or usual place of business of a director as the same appears on the
records of the corporation, not later than the day before the date on which such
meeting is to be held.
Notice given to a director by either one of the methods specified in this
Amended Constitution shall be sufficient, and the method of giving notice to all
directors need not be uniform. Notice of any meeting of directors may be given
only by the chairman of the board, the president or the secretary of this
Association. Any such notice need not specify the purpose or purposes of the
meeting. Notice of adjournment of a meeting of directors need not be given if
the time and place to which it is adjourned are fixed and announced at such
meeting.
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SECTION 8. WAIVER OF NOTICE. Notice of any meeting of directors may
be waived in writing, either before or after the holding of such meeting, by any
director, which writing shall be filed with or entered upon the records of the
meeting. The attendance of any director at any meeting of directors without
protesting, prior to or at the commencement of the meeting, the lack of proper
notice, shall be deemed to be a waiver by him of notice of such meeting.
SECTION 9. QUORUM. A majority of the whole authorized number of
directors shall be necessary to constitute a quorum for a meeting of directors,
except that a majority of the directors in office shall constitute a quorum for
filling a vacancy in the board. The act of a majority of the directors present
at a meeting at which a quorum is present is the act of the board, except as
otherwise provided by law, the Amended Articles or this Amended Constitution.
SECTION 10. EXECUTIVE COMMITTEE. The directors may create an
executive committee or any other committee of directors, to consist of not less
than three directors, and may authorize the delegation to such executive
committee or other committees of any of the authority of the directors, however
conferred, other than that of filling vacancies among the directors or in the
executive committee or in any other committee of the directors.
Such executive committee or any other committee of directors shall
serve at the pleasure of the directors, shall act only in the intervals between
meetings of the directors, and shall be subject to the control and direction of
the directors. Such executive committee or other committee of directors may act
by a majority of its members at a meeting or by a writing or writings signed by
all of its members.
Any act or authorization of any act by the executive committee or any
other committee within the authority delegated to it shall be as effective for
all purposes as the act or authorization of the directors. No notice of a
meeting of the executive committee or of any other committee of directors shall
be required. A meeting of the executive committee or of any other committee of
directors may be called only by the president or by a member of such executive
or other committee of directors. Meetings of the executive committee or of any
other committee of directors may be held through any communications equipment if
all persons participating can hear each other, and participation in such a
meeting shall constitute presence thereat.
SECTION 11. COMPENSATION. The compensation of the directors shall be
fixed by the shareholders at the annual meeting of shareholders and shall be
reasonable in view of the services performed and the financial condition of this
Association.
SECTION 12. DIRECTORS' BYLAWS. The directors shall have the power to
adopt, amend, repeal, and enforce such bylaws, resolutions and orders as they
may deem necessary to enable them to manage and control all the business,
property and rights of this Association.
SECTION 13. ASSESSMENTS. The directors shall have the power to
assess and collect from members and others such fines for late payment of loans
and such premiums on loans made or other assessments as they may deem
appropriate.
SECTION 14. DIRECTORS EMERITUS. The directors may employ directors
emeritus to serve as consultants or advisers to the board and may provide for
their compensation.
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ARTICLE SIX
OFFICERS
SECTION 1. OFFICERS. The officers of this Association to be elected
by the directors shall include a president, a vice president, a secretary, and a
treasurer and such other officers and assistant officers as the directors may
from time to time elect. One officer shall be designated as the executive
managing officer of the Association. The directors may elect a chairman of the
board, who must be a director. Officers need not be shareholders of this
Association, and may be paid such compensation as the board of directors may
determine. Any two or more offices may be held by the same person, but no
officer shall execute, acknowledge, or verify any instrument in more than one
capacity if such instrument is required by law, the Amended Articles, this
Amended Constitution or the Bylaws to be executed, acknowledged, or verified by
two or more officers.
SECTION 2. TENURE OF OFFICE. The officers of this Association shall
hold office at the pleasure of the directors. Any officer may be removed,
either with or without cause, at any time, by the affirmative vote of a majority
of all of the directors then in office; such removal, however, shall be without
prejudice to the contract rights, if any, of the person so removed.
SECTION 3. DUTIES OF THE OFFICERS. The duties of the officers shall
be established by the directors either in the Bylaws of this Association or by
resolution.
SECTION 4. COMPENSATION. The directors shall set the compensation of
the officers of this Association. The compensation of all officers of this
Association shall be reasonable in view of the services performed and the
financial condition of this Association.
ARTICLE SEVEN
SHARES
SECTION 1. CERTIFICATES. Certificates evidencing ownership of shares
of this Association shall be issued to those entitled to them. Each certificate
evidencing shares of this Association shall bear a distinguishing number; the
signatures of the chairman of the board, the president, or a vice president, and
of the secretary or an assistant secretary (except that when any such
certificate is countersigned by an incorporated transfer agent or registrar,
such signatures may be facsimile, engraved, stamped or printed); and such
recitals as may be required by law. Certificates evidencing shares of this
Association shall be of such tenor and design as the directors may from time to
time adopt and may bear such recitals as are permitted by law.
SECTION 2. TRANSFERS. Where a certificate evidencing a share or
shares of this Association is presented to this Association or its proper agents
with a request to register transfer, the transfer shall be registered as
requested if:
(A) An appropriate person signs on each certificate so presented or
signs on a separate document an assignment or transfer of shares evidenced by
each such certificate, or signs a power to assign or transfer such shares, or
when the signature of an appropriate person is written without more on the back
of each such certificate; and
(B) Reasonable assurance is given that the endorsement of each
appropriate person is genuine and effective; this Association may refuse to
register a transfer of shares unless the signature of each
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appropriate person is guaranteed by a commercial bank or trust company having an
office or a correspondent in the City of New York or by a firm having membership
in the New York Stock Exchange; and
(C) All applicable laws, if any, relating to the collection of
transfer or other taxes have been complied with; and
(D) This Association or its agents are not otherwise required or
permitted to refuse to register such transfer.
SECTION 3. TRANSFER AGENTS AND REGISTRARS. The directors may appoint
one or more agents to transfer or to register shares of this Association, or
both.
SECTION 4. LOST, WRONGFULLY TAKEN OR DESTROYED CERTIFICATES. Except
as otherwise provided by law, where the owner of a certificate evidencing shares
of this Association claims that such certificate has been lost, destroyed or
wrongfully taken, the directors must cause this Association to issue a new
certificate in place of the original certificate if the owner:
(A) So requests before this Association has notice that such original
certificate has been acquired by a bona fide purchaser; and
(B) Files with this Association, unless waived by the directors, an
indemnity bond, with surety or sureties satisfactory to this Association, in
such sums as the directors may, in their discretion, deem reasonably sufficient
as indemnity against any loss or liability that this Association may incur by
reason of the issuance of each such new certificate; and
(C) Satisfies any other reasonable requirements which may be imposed
by the directors, in their discretion.
ARTICLE EIGHT
INDEMNIFICATION AND INSURANCE
SECTION 1. This Association shall indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of this Association, by reason of the fact that he is or was a director or
officer of this Association, or is or was serving at the request of this
Association as a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, partnership, joint
venture, trust, or other enterprise, against expenses, including attorney's
fees, judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of this Association and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
this Association and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
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SECTION 2. This Association shall indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the right of this
Association to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of this Association or is or was serving at the
request of this Association as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, against expenses,
including attorney's fees, actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of this Association, except that no indemnification shall be made in
respect of any of the following:
(A) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty to this
Association unless, and only to the extent that, the Court of Common Pleas of
Hamilton County, Ohio, or the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the Court of Common Pleas of Hamilton
County, Ohio, or such other court shall deem proper;
(B) Any action or suit in which the only liability asserted against a
director is pursuant to 1701.95 of the Ohio Revised Code.
SECTION 3. To the extent that a director or officer has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 or 2 of this Article Eight, or in defense
of any claim, issue, or matter therein, he shall be indemnified against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
SECTION 4. Any indemnification under Sections 1 or 2 of this Article
Eight, unless ordered by a court, shall be made by this Association only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article
Eight. Such determination shall be made as follows:
(A) By a majority vote of a quorum consisting of directors of this
Association who were not and are not parties to or threatened with any such
action, suit, or proceeding;
(B) If the quorum described in Subsection (A) of this Section 4 is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for this Association or any person to be
indemnified within the past five years;
(C) By the shareholders;
(D) By the Court of Common Pleas of Hamilton County, Ohio, or the
court in which such action, suit, or proceeding was brought.
Any determination made by the disinterested directors under Subsection
(A) of this Section 4 or by independent legal counsel under Subsection (B) of
this Section 4 shall be promptly communicated to the
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person who threatened or brought the action or suit by or in the right of this
Association under Section 2 of this Article Eight, and within ten days after
receipt of such notification, such person shall have the right to petition the
Court of Common Pleas of Hamilton County, Ohio, or the court in which such
action or suit was brought to review the reasonableness of such determination.
SECTION 5.
(A) Expenses, including attorney's fees, incurred by a director in
defending the action, suit, or proceeding shall be paid by this Association as
they are incurred, in advance of the final disposition of the action, suit, or
proceeding upon receipt of an undertaking by or on behalf of the director in
which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
this Association or undertaken with reckless disregard for the best interests of
this Association; and
(ii) Reasonably cooperate with this Association concerning the
action, suit, or proceeding.
(B) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, or agent in defending any action, suit, or
proceeding referred to in Section 2 of this Article Eight, may be paid by this
Association as they are incurred, in advance of the final disposition of the
action, suit, or proceeding as authorized by the directors in the specific case
upon receipt of an undertaking by or on behalf of the director, trustee,
officer, employee, or agent to repay such amount, if it ultimately is determined
that he is not entitled to be indemnified by this Association.
SECTION 6. The indemnification authorized by this Article Eight shall
not be exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the Amended Articles or the Amended
Constitution of this Association or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors, and administrators of such a
person.
SECTION 7. This Association may purchase and maintain insurance or
furnish similar protection including, but not limited to, trust funds, letters
of credit, or self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of this Association, or is or was serving
at the request of this Association as a director, trustee, officer, employee, or
agent of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not this Association would have the power to
indemnify him against such liability under this section. Insurance may be
purchased from or maintained with a person in which this Association has a
financial interest.
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SECTION 8. The authority of this Association to indemnify persons
pursuant to Sections 1 or 2 of this Article Eight does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other protection
that may be provided pursuant to Sections 5, 6 and 7. Sections 1 and 2 of this
Article Eight do not create any obligation to repay or return payments made by
this Association pursuant to Sections 5, 6 or 7.
SECTION 9. As used in this Article Eight, references to this
Association include all constituent corporations in a consolidation or merger
and the new or surviving corporation, so that any person who is or was a
director, officer, employee, or agent of such a constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise, shall stand in the same position under this section with respect to
the new or surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
SECTION 10. Any action, suit or proceeding to determine a claim for
indemnification under this Article Eight may be maintained by the person
claiming such indemnification, or by the corporation, in the Court of Common
Pleas of Hamilton County, Ohio. This Association and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Hamilton County, Ohio, in any
such action, suit or proceeding.
ARTICLE NINE
DISSOLUTION
SECTION 1. To dissolve this Association, a resolution in writing
asking for such dissolution shall be adopted by the board of directors, or
requested in writing in the form of a resolution by the holders of at least
twenty-five percent of the voting shares of this Association.
SECTION 2. Upon the presentation to the board of directors of one of
the resolutions specified in Section 1 above, the board of directors shall call
a special meeting of the shareholders for the purpose of considering and acting
upon such resolution. If at such special meeting, the holders of a majority of
the voting shares of this Association entitled to vote under the provisions of
this Constitution vote for dissolution, the board of directors shall take the
necessary steps to wind up the affairs of this Association, subject to the
contract rights of its borrowers, in accordance with statutory requirements
existing at the date such action is taken.
ARTICLE TEN
MISCELLANEOUS
SECTION 1. AMENDMENTS. This Constitution may be amended at any
annual or special meeting of the shareholders of this Association by the
affirmative vote of the holders of three-fifths of the shares of record
represented in person or by proxy at such meeting. All proposals to amend this
Constitution shall be presented in writing to the board of directors at a
regular meeting thereof at least thirty (30) days before such annual or special
meeting of the shareholders, and the amendment adopted shall be substantially
the same as proposed.
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SECTION 2. ACTION BY SHAREHOLDERS OR DIRECTORS WITHOUT A MEETING.
Anything contained in this Constitution to the contrary notwithstanding, any
action which may be authorized or taken at a meeting of the shareholders or of
the directors or of a committee of the directors, as the case may be, may be
authorized or taken without a meeting with the affirmative vote or approval of,
and in a writing or writings signed by, all the shareholders who would be
entitled to notice of a meeting of the shareholders held for such purpose, or
all the directors, or all the members of such committee of the directors,
respectively, which writings shall be filed with or entered upon the records of
this Association.
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