Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WVS FINANCIAL CORP.
Article 1. Name. The name of the corporation is WVS Financial Corp.
(hereinafter referred to as the "Corporation").
Article 2. Registered Office. The address of the registered office of
the Corporation in the Commonwealth of Pennsylvania is 9001 Perry Highway,
Pittsburgh, Pennsylvania 15237-5387.
Article 3. Nature of Business. The purpose of the Corporation is to
engage in any lawful act or activity for which a corporation may be organized
under the Business Corporation Law of 1988, as amended, of the Commonwealth of
Pennsylvania (the "BCL"). The Corporation is incorporated under the provisions
of the BCL.
Article 4. Duration. The term of the existence of the Corporation shall
be perpetual.
Article 5. Capital Stock.
A. Authorized Amount. The total number of shares of capital stock which
the Corporation has authority to issue is 15,000,000, of which 5,000,000 shall
be serial preferred stock (hereinafter the "Preferred Stock"), and 10,000,000
shall be common stock, par value $.01 per share (hereinafter the "Common
Stock"). Except to the extent required by governing law, rule or regulation, the
shares of capital stock may be issued from time to time by the Board of
Directors without further approval of stockholders. The Corporation shall have
the authority to purchase its capital stock out of funds lawfully available
therefor.
B. Common Stock. Except as provided in this Article 5 (or in any
resolution or resolutions adopted by the Board of Directors pursuant hereto),
the exclusive voting power shall be vested in the Common Stock, with each holder
thereof being entitled to one vote for each share of such Common Stock standing
in the holder's name on the books of the Corporation. Subject to any rights and
preferences of any class of stock having preference over the Common Stock,
holders of Common Stock shall be entitled to such dividends as may be declared
by the Board of Directors out of funds lawfully available therefor. Upon any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Common Stock shall be entitled to
receive pro rata the remaining assets of the Corporation after the holders of
any class of stock having preference over the Common Stock have been paid in
full any sums to which they may be entitled.
C. Authority of Board to Fix Terms of Preferred Stock. The Board of
Directors shall have the full authority permitted by law to divide the
authorized and unissued shares of Preferred Stock into series and to fix by
resolution full, limited, multiple or fractional, or no voting
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rights, and such designations, preferences, qualifications, privileges,
limitations, restrictions, options, conversion rights, and other special or
relative rights of the Preferred Stock or any series thereof that may be
desired.
D. Uncertificated Shares. Any or all classes and series of shares of
the Corporation, or any part thereof, may be represented by uncertificated
shares to the extent determined by the Board of Directors, except as required by
applicable law, including that shares represented by a certificate that is
issued and outstanding shall continue to be represented thereby until the
certificate is surrendered to the Corporation. Within a reasonable time after
the issuance or transfer of uncertificated shares, the Corporation shall send to
the registered owner thereof a written notice containing the information
required by applicable law to be set forth or stated on certificates. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of shares represented by certificates and the rights and obligations of the
holders of uncertificated shares of the same class and series shall be
identical.
Article 6. Directors. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors.
A. Number. Except as otherwise increased from time to time by the
exercise of the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors, the number of directors of the Corporation shall be
determined as stated in the Corporation's Bylaws, as may be amended from time to
time.
B. Classification and Term. The initial directors shall serve until the
first annual meeting of stockholders after the effective date of the Articles of
Incorporation of the Corporation. At such first annual meeting, a classified
Board of Directors will be elected to succeed the initial directors. The Board
of Directors, other than those who may be elected by the holders of any class or
series of stock having preference over the Common Stock as to dividends or upon
liquidation, shall be divided into four classes as nearly equal in number as
possible, with one class to be elected annually at each annual meeting
subsequent to the first annual meeting of stockholders. The term of office of
the directors elected at the first annual meeting of stockholders shall be as
follows:
(1) the term of office of the directors of the first class
shall expire at the first annual meeting of stockholders after their election as
directors;
(2) the term of office of the directors of the second class
shall expire at the second annual meeting of stockholders after their election
as directors;
(3) the term of office of the directors of the third class
shall expire at the third annual meeting of stockholders after their election as
directors; and
(4) the term of office of the directors of the fourth class
shall expire at the fourth annual meeting of stockholders after their election
as directors;
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and, as to the directors of each class, when their respective successors are
elected and qualified. At each annual meeting of stockholders subsequent to the
first annual meeting of stockholders, the directors elected to succeed those in
the class whose terms are expiring shall be elected for a term of office to
expire at the fourth succeeding annual meeting of stockholders and when their
respective successors are elected and qualified. Notwithstanding the foregoing,
and except as otherwise required by law, whenever the holders of any one or more
series of Preferred Stock shall have the right, voting separately as a class, to
elect one or more directors of the Corporation, the terms of the director or
directors elected by such holders shall expire at the next succeeding annual
meeting of stockholders and vacancies created with respect to any directorship
of the directors so elected may be filled in the manner specified by the terms
of such Preferred Stock.
C. No Cumulative Voting. Stockholders of the Corporation shall not be
permitted to cumulate their votes for the election of directors.
D. Vacancies. Except as otherwise fixed pursuant to the provisions of
Article 5 hereof relating to the rights of the holders of any class or series of
stock having preference over the Common Stock as to dividends or upon
liquidation to elect directors, any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, shall be filled by a majority vote of the directors then in office,
whether or not a quorum is present, or by a sole remaining director, and any
director so chosen shall serve until the term of the class to which he was
appointed shall expire and until his successor is elected and qualified. When
the number of directors is changed, the Board of Directors shall determine the
class or classes to which the increased or decreased number of directors shall
be apportioned, provided that no decrease in the number of directors shall
shorten the term of any incumbent director.
E. Removal. Subject to the rights of any class or series of stock
having preference over the Common Stock as to dividends or upon liquidation to
elect directors, any director (including persons elected by directors to fill
vacancies in the Board of Directors) may be removed from office without cause by
an affirmative vote of not less than 75% of the total votes eligible to be cast
by stockholders at a duly constituted meeting of stockholders called expressly
for such purpose and may be removed from office with cause by an affirmative
vote of not less than a majority of the total votes eligible to be cast by
stockholders. Cause for removal shall exist only if the director whose removal
is proposed has been either declared of unsound mind by an order of a court of
competent jurisdiction, convicted of a felony or of an offense punishable by
imprisonment for a term of more than one year by a court of competent
jurisdiction, or deemed liable by a court of competent jurisdiction for gross
negligence or misconduct in the performance of such director's duties to the
Corporation. At least 30 days prior to such meeting of stockholders, written
notice shall be sent to the director whose removal will be considered at the
meeting. Directors may also be removed from office in the manner provided in
Sections 1726(b) and 1726(c) of the BCL, or any successors to such sections.
F. Nominations of Directors. Nominations of candidates for election as
directors at any annual meeting of stockholders may be made (a) by, or at the
direction of, a majority of the Board of Directors or (b) by any stockholder
entitled to vote at such annual meeting. Only persons nominated in accordance
with the procedures set forth in this Article 6.F shall be eligible for election
as directors at an annual meeting. Ballots bearing the names of all the persons
who have
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been nominated for election as directors at an annual meeting in accordance with
the procedures set forth in this Article 6.F shall be provided for use at the
annual meeting.
Nominations, other than those made by or at the direction of the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Article 6.F. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the Corporation not later than 60 days prior to
the anniversary date of the immediately preceding annual meeting of stockholders
of the Corporation; provided, however, that with respect to the first scheduled
annual meeting following the completion of the conversion of West View Savings
Bank, Pittsburgh, Pennsylvania (the "Savings Bank"), from mutual to stock form,
notice by the stockholder must be so delivered or received no later than the
close of business on the tenth day following the day on which notice of the date
of the scheduled annual meeting was mailed, provided further that the notice by
the stockholder must be delivered or received no later than the close of
business on the fifth day preceding the date of the meeting. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director and as to the stockholder
giving the notice (i) the name, age, business address and residence address of
such person, (ii) the principal occupation or employment of such person, (iii)
the class and number of shares of Corporation stock which are Beneficially Owned
(as defined in Article 10.A(e)) by such person on the date of such stockholder
notice, and (iv) any other information relating to such person that is required
to be disclosed in solicitations of proxies with respect to nominees for
election as directors, pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including, but not limited to,
information required to be disclosed by Items 4, 5, 6 and 7 of Schedule 14A and
information which would be required to be filed on Schedule 14B with the
Securities and Exchange Commission (or any successors of such items or
schedules); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the Corporation's books, of such stockholder and any
other stockholders known by such stockholder to be supporting such nominees and
(ii) the class and number of shares of Corporation stock which are Beneficially
Owned by such stockholder on the date of such stockholder notice and, to the
extent known, by any other stockholders known by such stockholder to be
supporting such nominees on the date of such stockholder notice. At the request
of the Board of Directors, any person nominated by, or at the direction of, the
Board for election as a director at an annual meeting shall furnish to the
Secretary of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
The Board of Directors may reject any nomination by a stockholder not
timely made in accordance with the requirements of this Article 6.F. If the
Board of Directors, or a designated committee thereof, determines that the
information provided in a stockholder's notice does not satisfy the
informational requirements of this Article 6.F in any material respect, the
Secretary of the Corporation shall promptly notify such stockholder of the
deficiency in the notice. The stockholder shall have an opportunity to cure the
deficiency by providing additional information to the Secretary within such
period of time, not to exceed five days from the date such deficiency notice is
given to the stockholder, as the Board of Directors or such committee shall
reasonably determine. If the deficiency is not cured within such period, or if
the Board of Directors or such committee reasonably determines that the
additional information provided by the stockholder, together with information
previously provided, does not satisfy the requirements of this Article 6.F in
any material respect, then the Board of Directors may reject such stockholder's
nomination. The Secretary of the
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Corporation shall notify a stockholder in writing whether his nomination has
been made in accordance with the time and informational requirements of this
Article 6.F. Notwithstanding the procedures set forth in this paragraph, if
neither the Board of Directors nor such committee makes a determination as to
the validity of any nominations by a stockholder, the presiding officer of the
annual meeting shall determine and declare at the annual meeting whether the
nomination was made in accordance with the terms of this Article 6.F. If the
presiding officer determines that a nomination was made in accordance with the
terms of this Article 6.F, he shall so declare at the annual meeting and ballots
shall be provided for use at the meeting with respect to such nominee. If the
presiding officer determines that a nomination was not made in accordance with
the terms of this Article 6.F, he shall so declare at the annual meeting and the
defective nomination shall be disregarded.
Notwithstanding the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the provisions of this Article 6.F shall not apply with respect to
the director or directors elected by such holders of Preferred Stock.
G. Discharge of Duties. In discharging the duties of their respective
positions, the Board of Directors, committees of the Board of Directors and
individual directors shall, in considering the best interests of the
Corporation, consider the effects of any action upon the employees of the
Corporation and its subsidiaries, the depositors and borrowers of any insured
institution subsidiary, the communities in which offices or other establishments
of the Corporation or any subsidiary are located and all other pertinent
factors.
Article 7. Preemptive Rights. No holder of the capital stock of the
Corporation shall be entitled as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of stock of any class
whatsoever of the Corporation, or of securities convertible into stock of any
class whatsoever, whether now or hereafter authorized, or whether issued for
cash or other consideration or by way of a dividend.
Article 8. Indemnification, etc. of Officers, Directors, Employees and
Agents.
A. Personal Liability of Directors. A director of the Corporation shall
not be personally liable for monetary damages for any action taken, or any
failure to take any action, as a director except to the extent that by law a
director's liability for monetary damages may not be limited.
B. Indemnification. The Corporation shall 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, including actions by or in the right of
the Corporation, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding to
the full extent permissible under Pennsylvania law.
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C. Advancement of Expenses. Reasonable expenses incurred by an officer,
director, employee or agent of the Corporation in defending a civil or criminal
action, suit or proceeding described in Section B of this Article 8 may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that the person is not
entitled to be indemnified by the Corporation.
D. Other Rights. The indemnification and advancement of expenses
provided by or pursuant to this Article 8 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any insurance or other agreement, vote of stockholders or
directors or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding an office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such person.
E. Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
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 the Corporation would have the power to
indemnify him against such liability under the provisions of this Article 8.
F. Security Fund; Indemnity Agreements. By action of the Board of
Directors (notwithstanding their interest in the transaction), the Corporation
may create and fund a trust fund or fund of any nature, and may enter into
agreements with its officers, directors, employees and agents for the purpose of
securing or insuring in any manner its obligation to indemnify or advance
expenses provided for in this Article 8.
G. Modification. The duties of the Corporation to indemnify and to
advance expenses to any person as provided in this Article 8 shall be in the
nature of a contract between the Corporation and each such person, and no
amendment or repeal of any provision of this Article 8, and no amendment or
termination of any trust or other fund created pursuant to Section F of this
Article 8, shall alter to the detriment of such person the right of such person
to the advance of expenses or indemnification related to a claim based on an act
or failure to act which took place prior to such amendment, repeal or
termination.
H. Proceedings Initiated by Indemnified Persons. Notwithstanding any
other provision of this Article 8, the Corporation shall not indemnify a
director, officer, employee or agent for any liability incurred in an action,
suit or proceeding initiated (which shall not be deemed to include
counter-claims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the action, suit or proceeding is authorized, either before or
after its commencement, by the affirmative vote of a majority of the directors
in office.
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Article 9. Meetings of Stockholders and Stockholder Proposals
A. Definitions.
(a) Acquire. The term "Acquire" includes every type of
acquisition, whether effected by purchase, exchange, operation of law or
otherwise.
(b) Acting in Concert. The term "Acting in Concert" means (a)
knowing participation in a joint activity or 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.
(c) Affiliate. An "Affiliate" of, or a Person "affiliated
with," a specified Person, means a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
(d) Associate. The term "Associate" used to indicate a
relationship with any Person means:
(i) Any corporation or organization (other than the
Corporation or a Subsidiary of the Corporation), or any subsidiary or
parent thereof, of which such Person is a director, 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 10%
or greater beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity, provided, however, such
term shall not include any employee stock benefit plan of the
Corporation or a Subsidiary of the Corporation in which such Person has
a 10% or greater beneficial interest or serves as a trustee or in a
similar fiduciary capacity;
(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 the Corporation or a Subsidiary of the
Corporation (or any subsidiary or parent thereof); or
(iv) Any investment company registered under the Investment
Company Act of 1940 for which such Person or any Affiliate or Associate
of such Person serves as investment advisor.
(e) Beneficial Owner (including Beneficially Owned). A Person
shall be considered the "Beneficial Owner" of any shares of stock (whether or
not owned of record):
(i) With respect to which such Person or any Affiliate or
Associate of such Person directly or indirectly has or shares (A)
voting power, including the power to vote or to direct the voting of
such shares of stock, and/or (B) investment power, including the power
to dispose of or to direct the disposition of such shares of stock;
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(ii) Which such Person or any Affiliate or Associate of such
Person has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
and/or (B) the right to vote pursuant to any agreement, arrangement or
understanding (whether such right is exercisable immediately or only
after the passage of time); or
(iii) Which are Beneficially Owned within the meaning of (i)
or (ii) of this Article 9.A(e) by any other Person with which such
first-mentioned Person or any of its Affiliates or Associates either
(A) has any agreement, arrangement or understanding, written or oral,
with respect to acquiring, holding, voting or disposing of any shares
of stock of the Corporation or any Subsidiary of the Corporation or
acquiring, holding or disposing of all or substantially all, or any
Substantial Part, of the assets or business of the Corporation or a
Subsidiary of the Corporation, or (B) is Acting in Concert. For the
purpose only of determining whether a Person is the Beneficial Owner of
a percentage specified in this Article 9 of the outstanding Voting
Shares, such shares shall be deemed to include any Voting Shares which
may be issuable pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights, warrants,
options or otherwise and which are deemed to be Beneficially Owned by
such Person pursuant to the foregoing provisions of this Article
9.A(e), but shall not include any other Voting Shares which may be
issuable in such manner.
(f) Offer. The term "Offer" shall mean every offer to buy or
acquire, solicitation of an offer to sell, tender offer or request or invitation
for tender of, a security or interest in a security for value; provided that the
term "Offer" shall not include (i) inquiries directed solely to the management
of the Corporation and not intended to be communicated to stockholders which are
designed to elicit an indication of management's receptivity to the basic
structure of a potential acquisition with respect to the amount of cash and or
securities, manner of acquisition and formula for determining price, or (ii)
non-binding expressions of understanding or letters of intent with the
management of the Corporation regarding the basic structure of a potential
acquisition with respect to the amount of cash and or securities, manner of
acquisition and formula for determining price.
(g) Person. The term "Person" shall mean any individual,
partnership, corporation, association, trust, group or other entity. When two or
more Persons act as a partnership, limited partnership, syndicate, association
or other group for the purpose of acquiring, holding or disposing of shares of
stock, such partnership, syndicate, associate or group shall be deemed a
"Person."
(h) Substantial Part. The term "Substantial Part" as used with
reference to the assets of the Corporation or of any Subsidiary means assets
having a value of more than 10% of the total consolidated assets of the
Corporation and its Subsidiaries as of the end of the Corporation's most recent
fiscal year ending prior to the time the determination is being made.
(i) Subsidiary. "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Person in question.
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(j) Voting Shares. "Voting Shares" shall mean shares of the
Corporation entitled to vote generally in an election of directors.
(k) Certain Determinations With Respect to Article 9. A
majority of the directors shall have the power to determine for the purposes of
this Article 9, on the basis of information known to them and acting in good
faith: (A) the number of Voting Shares of which any Person is the Beneficial
Owner, (B) whether a Person is an Affiliate or Associate of another, (C) whether
a Person has an agreement, arrangement or understanding with another as to the
matters referred to in the definition of "Beneficial Owner" as hereinabove
defined, and (D) such other matters with respect to which a determination is
required under this Article 9.
(l) Directors, Officers or Employees. Directors, officers or
employees of the Corporation or any Subsidiary thereof shall not be deemed to be
a group with respect to their individual acquisitions of any class of equity
securities of the Corporation solely as a result of their capacities as such.
B. Special Meetings of Stockholders. Except as otherwise required by
law and subject to the rights of the holders of any class or series of Preferred
Stock, special meetings of the stockholders of the Corporation may be called
only by (i) the Board of Directors pursuant to a resolution approved by the
affirmative vote of a majority of the directors then in office, (ii) the
Chairman of the Board or (iii) the President.
C. Action Without a Meeting. Any action permitted to be taken by the
stockholders at a meeting may be taken without a meeting if consent in writing
setting forth the action so taken shall be signed by all of the stockholders who
would be entitled to vote at a meeting for such purpose and filed with the
Secretary of the Corporation as part of the corporate records.
D. Stockholder Proposals. At an annual meeting of stockholders, only
such new business shall be conducted, and only such proposals shall be acted
upon, as shall have been brought before the annual meeting by, or at the
direction of, (a) the Board of Directors or (b) any stockholder of the
Corporation who complies with all the requirements set forth in this Article
9.D.
Proposals, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation as set forth in this Article 9.D. For stockholder proposals
to be included in the Corporation's proxy materials, the stockholder must comply
with all the timing and informational requirements of Rule 14a-8 of the Exchange
Act (or any successor regulation). With respect to stockholder proposals to be
considered at the annual meeting of stockholders but not included in the
Corporation's proxy materials, the stockholder notice shall be delivered to, or
mailed and received at, the principal executive offices of the Corporation not
later than 60 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders of the Corporation; provided, however, that with
respect to the first scheduled annual meeting following the completion of the
conversion of the Savings Bank from mutual to stock form, notice by the
stockholder must be so delivered or received no later than the close of business
on the tenth day following the day on which notice of the date of the scheduled
annual meeting was mailed, provided further that the notice by the stockholder
must be delivered or
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received no later than the close of business on the fifth day preceding the date
of the meeting. Such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the proposal desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business and, to the extent known, any other stockholders known by such
stockholder to be supporting such proposal, (c) the class and number of shares
of the Corporation stock which are Beneficially Owned by the stockholder on the
date of such stockholder notice and, to the extent known, by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder notice, and (d) any financial interest of the
stockholder in such proposal (other than interests which all stockholders would
have).
The Board of Directors may reject any stockholder proposal not timely
made in accordance with the terms of this Article 9.D. If the Board of
Directors, or a designated committee thereof, determines that the information
provided in a stockholder's notice does not satisfy the information requirements
of this Article 9.D in any material respect, the Secretary of the Corporation
shall promptly notify such stockholder of the deficiency in the notice. The
stockholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within such period of time not to exceed
five days from the date such deficiency notice is given to the stockholder as
the Board of Directors or such committee shall reasonably determine. If the
deficiency is not cured within such period, or if the Board of Directors or such
committee determines that the additional information provided by the
stockholder, together with information previously provided, does not satisfy the
requirements of this Article 9.D in any material respect, then the Board of
Directors may reject such stockholder's proposal. The Secretary of the
Corporation shall notify a stockholder in writing whether his proposal has been
made in accordance with the time and informational requirements of this Article
9.D. Notwithstanding the procedures set forth in this paragraph, if neither the
Board of Directors nor such committee makes a determination as to the validity
of any stockholder proposal, the presiding officer of the annual meeting shall
determine and declare at the annual meeting whether the stockholder proposal was
made in accordance with the terms of this Article 9.D. If the presiding officer
determines that a stockholder proposal was made in accordance with the terms of
this Article 9.D, he shall so declare at the annual meeting and ballots shall be
provided for use at the meeting with respect to any such proposal. If the
presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Article 9.D, he shall so declare at the annual
meeting and any such proposal shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
Article 10. Amendment of Articles and Bylaws.
A. Articles. The Corporation reserves the right to amend, alter, change
or repeal any provision contained in these Articles of Incorporation, in the
manner now or hereafter prescribed by law, and all rights conferred upon
stockholders herein are granted subject to this reservation. No
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amendment, addition, alteration, change or repeal of these Articles of
Incorporation shall be made unless it is first approved by the Board of
Directors of the Corporation pursuant to a resolution adopted by the affirmative
vote of a majority of the directors then in office, and, to the extent required
by applicable law, thereafter is approved by the holders of a majority (except
as provided below) of the shares of the Corporation entitled to vote generally
in an election of directors, voting together as a single class, as well as such
additional vote of the Preferred Stock as may be required by the provisions of
any series thereof. Notwithstanding anything contained in these Articles of
Incorporation to the contrary, the affirmative vote of the holders of at least
75% of the shares of the Corporation entitled to vote generally in an election
of directors, voting together as a single class, as well as such additional vote
of the Preferred Stock as may be required by the provisions of any series
thereof, shall be required to amend, adopt, alter, change or repeal any
provision inconsistent with Articles 6, 7, 8, 9 and 10.
B. Bylaws. The Board of Directors, to the extent permitted by law, or
stockholders may adopt, alter, amend or repeal the Bylaws of the Corporation.
Such action by the Board of Directors shall require the affirmative vote of a
majority of the directors then in office at any regular or special meeting of
the Board of Directors. Such action by the stockholders shall require the
affirmative vote of the holders of a majority of the shares of the Corporation
entitled to vote generally in an election of directors, voting together as a
single class, as well as such additional vote of the Preferred Stock as may be
required by the provisions of any series thereof, provided that the affirmative
vote of the holders of at least 75% of the shares of the Corporation entitled to
vote generally in an election of directors, voting together as a single class,
as well as such additional vote of the Preferred Stock as may be required by the
provisions of any series thereof, shall be required to amend, adopt, alter,
change or repeal any provision inconsistent with Sections 2.3, 4.1, 4.2, 4.3 and
4.4 of the Bylaws and Articles VIII and XII of the Bylaws.
These Articles of Incorporation were amended and restated by action of
the Board of Directors of the Corporation on July 31, 2007.
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