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EXHIBIT TO S-4
REGISTRATION STATEMENT
EXHIBIT 3.A
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DCB FINANCIAL CORP.
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THE UNDERSIGNED, under Sections 1701.01 et seq. of the Revised Code of
Ohio, do hereby certify:
FIRST: The name of said Corporation shall be:
DCB Financial Corp.
SECOND: The place in the State of Ohio where its principal office is to be
located is Delaware in Delaware County.
THIRD: The purposes for which it is formed are:
To engage in any lawful act or activity for which corporations may be
formed under Sections 1701.01 to 1701.98 inclusive of the Ohio Revised Code.
FOURTH: The authorized number of shares of the Corporation is Seven
Million Five Hundred Thousand (7,500,000), all of which shall be without par
value.
FIFTH: The following provisions are hereby agreed to for the purpose of
defining, limiting and regulating the exercise of the authority of the
Corporation, or of the Directors, or of all of the shareholders:
The Board of Directors is expressly authorized to set apart, out of any of
the funds of the Corporation available for dividends, a reserve or reserves for
any proper purpose or to abolish any such reserve in the manner in which it was
created, and to purchase on behalf of the Corporation any shares issued by it
to the extent permitted under Sections 1701.01 et seq. of the Revised Code of
Ohio.
The Corporation may in its regulations confer powers upon its Board of
Directors in addition to the powers and authorities conferred upon it expressly
by Sections 1701.01 et seq. of the Revised Code of Ohio.
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Subject to Article SIXTH, any amendments to the Articles of Incorporation
may be made from time to time, and any proposal or proposition requiring the
action of shareholders may be authorized from time to time by the affirmative
vote of the holders of shares entitling them to exercise a majority of the
voting power of the Corporation.
Any meeting of the shareholders or the Board of Directors may be held at
any place within or without the State of Ohio in the manner provided for in the
regulations of the Corporation.
SIXTH: FAIR PRICE AND SUPER VOTE REQUIREMENT
A. Definitions as used in this Article Sixth
(1) "Affiliate" or "Associate" shall have the respective meanings given
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934.
(2) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
by itself or with others (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, or (b) the right to
vote pursuant to any agreement, arrangement or understanding; or
(iii) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(3) "Business Combination" shall include:
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(i) any merger or consolidation of the Corporation or any of its
subsidiaries with or into an Interested Shareholder, regardless of which person
is the surviving entity;
(ii) any sale, lease, exchange, mortgage, pledge, or other
disposition (in one transaction or a series of transactions) from the
Corporation or any of its subsidiaries to an Interested Shareholder, or from
an Interested Shareholder to the Corporation or any of its subsidiaries, of
assets having an aggregate Fair Market Value of twenty percent (20%) or more
of the Corporation's total stockholders' equity;
(iii) the issuance, sale or other transfer by the Corporation or
any subsidiary thereof of any securities of the Corporation or any subsidiary
thereof to an Interested Shareholder (other than an issuance or transfer of
securities which is effected on a pro rata basis to all shareholders of the
Corporation);
(iv) the acquisition by the Corporation or any of its subsidiaries
of any securities of an Interested Shareholder;
(v) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder;
(vi) any reclassification or recapitalization of securities of
the Corporation if the effect, directly or indirectly, of such transaction is
to increase the relative voting power of an Interested Shareholder; or
(vii) any agreement, contract or other arrangement providing for
or resulting in any of the transactions described in this definition of
Business Combination.
(4) "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with the Interested
Shareholder and was a member of the Board of Directors prior to the time that
the Interested Shareholder became an Interested Shareholder; any successor of
a Continuing Director who is unaffiliated with the Interested Shareholder and
is approved to succeed a Continuing Director by the Continuing Directors; any
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member of the Board of Directors who is appointed to fill a vacancy on the
Board of Directors who is unaffiliated with the Interested Shareholder and is
approved by the Continuing Directors.
(5) "Fair Market Value" shall mean:
(i) in the case of securities listed on a national securities
exchange or quoted in the National Association of Securities Dealers Automated
Quotations System (or any successor thereof), the highest sales price or bid
quotation, as the case may be, reported for securities of the same class or
series traded on a national securities exchange or in the over-the-counter
market during the 30-day period immediately prior to the date in question, or
if no such report or quotation is available, the fair market value as
determined by the Continuing Directors; and
(ii) in the case of other securities and of other property or
consideration (other than cash), the Fair Market Value as determined by the
Continuing Directors; provided, however, in the event the power and authority
of the Continuing Directors ceases and terminates pursuant to Subdivision F of
this Article SIXTH as a result of there being less than five Continuing
Directors at any time, then (a) for purposes of clause (ii) of the definition
of "Business Combination," any sale, lease, exchange, mortgage, pledge, or
other disposition of assets from the Corporation or any of its subsidiaries to
an Interested Shareholder or from an Interested Shareholder to the Corporation
or any of its subsidiaries, regardless of the Fair Market Value thereof, shall
constitute a Business Combination, and (b) for purposes of paragraph 1 of
Subdivision D of this Article SIXTH, in determining the amount of consideration
received or to be received per share by the Independent Shareholders in a
Business Combination, there shall be excluded all consideration other than cash
and the Fair Market Value of securities listed on a national securities
exchange or quoted in the National Association of Securities Dealers Automated
Quotations System (or any successor thereof) for which there is a reported
sales price or bid quotation, as the case may be, during the 30-day period
immediately prior to the date in question.
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(6) "Independent Shareholder" shall mean shareholders of the Corporation
other than the Interested Shareholder engaged in or proposing the Business
Combination.
(7) "Interested Shareholder" shall mean: (a) any person (other than the
Corporation or any of its subsidiaries), and (b) the Affiliates and Associates
of such person, who, or which together, are:
(i) the beneficial owner, directly or indirectly, of 10% or more
of the outstanding Voting Stock or were within the two-year period immediately
prior to the date in question the beneficial owner, directly or indirectly, of
10% or more of the then outstanding Voting Stock; or
(ii) an assignee of or other person who has succeeded to any
shares of the Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an Interested
Shareholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
Notwithstanding the foregoing, no Trust Department, or designated
fiduciary or other trustee of such Trust Department of the Corporation or a
subsidiary of the Corporation, or other similar fiduciary capacity of the
Corporation with direct voting control of the outstanding Voting Stock shall be
included or considered as an Interested Shareholder. Further, no
profit-sharing, employee stock ownership, employee stock purchase and savings,
employee pension, or other employee benefit plan of the Corporation or any of
it subsidiaries, and no trustee of any such plan in its capacity as such
trustee, shall be included or considered as an Interested Shareholder.
(8) A "Person" shall mean an individual, partnership, trust,
corporation, or other entity and includes any two or more of the foregoing
acting in concert.
(9) "Voting Stock" shall mean all outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors of the
Corporation.
B. Supermajority Vote to Effect Business Combination. No Business
Combination shall be effected or consummated unless:
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(1) Authorized and approved by the Continuing Directors and, if
otherwise required by law to authorize or approve the transaction, the approval
or authorization of shareholders of the Corporation, by the affirmative vote of
the holders of such number of shares as is mandated by the Ohio Revised Code;
or
(2) Authorized and approved by the affirmative vote of holders of not
less than 80% of the outstanding Voting Stock voting together as a single class.
The authorization and approval required by this Subdivision B is in
addition to any authorization and approval required by Subdivision C of this
Article SIXTH.
C. Fair Price Required to Effect Business Combination. No Business
Combination shall be effected or consummated unless:
(1) All the conditions and requirements set forth in Subdivision D of
this Article SIXTH have been satisfied; or
(2) Authorized and approved by the Continuing Directors; or
(3) Authorized and approved by the affirmative vote of holders of not
less than 66 2/3% of the outstanding Voting Stock held by all Independent
Shareholders voting together as a single class.
Any authorization and approval required by this Subdivision C is in
addition to any authorization and approval required by Subdivision B of this
Article SIXTH.
D. Conditions and Requirements to Fair Price. All the following
conditions and requirements must be satisfied in order for clause (1) of
Subdivision C of this Article SIXTH to be applicable.
(1) The cash and Fair Market Value of the property, securities or other
consideration to be received by the Independent Shareholders in the Business
Combination per share for each class or series of capital stock of the
Corporation must not be less than the sum of:
(i) the highest per share price (including brokerage commissions,
transfer taxes, soliciting dealer's fees and similar payments) paid by the
Interested Shareholder in
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acquiring any shares of such class or series, respectively, and, in the case of
Preferred Stock, if greater, the amount of the per share redemption price; and
(ii) the amount, if any, by which interest on the per share price,
calculated at the Treasury Bill Rate from time to time in effect, from the date
the Interested Shareholder first became an Interested Shareholder until the
Business Combination has been consummated, exceeds the per share amount of cash
dividends received by the Independent Shareholders during such period. The
"Treasury Bill Rate" means for each calendar quarter, or part thereof, the
interest rate of the last auction in the preceding calendar of 91-day United
States Treasury Bills expressed as a bond equivalent yield.
For purposes of this paragraph (1) per share amounts shall be
appropriately adjusted for any recapitalization, reclassification, stock
dividend, stock split, reserve split, or other similar transaction. Any
Business Combination which does not result in the Independent Shareholders
receiving consideration for or in respect of their shares of capital stock of
the Corporation shall not be treated as complying with the requirements of this
paragraph (1).
(2) The form of the consideration to be received by the Independent
Shareholders owning the Corporation's shares must be the same as was previously
paid by the Interested Shareholder(s) for shares of the same class or series;
provided, however, if the Interested Shareholder previously paid for shares of
such class or series with different forms of consideration, the form of the
consideration to be received by the Independent Shareholders owning shares of
such class or series must be in the form as was previously paid by the
Interested Shareholder in acquiring the largest number of shares of such class
or series previously acquired by the Interested Shareholder, provided, further,
in the event no shares of the same class or series had been previously acquired
by the Interested Shareholder, the form of consideration must be cash. The
provisions of this paragraph (2) are not intended to diminish the aggregate
amount of cash and Fair Market Value of any other consideration that any holder
of the Corporation's shares is otherwise entitled to receive upon the
liquidation or dissolution of the
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Corporation, under the terms of any contract with the Corporation or an
Interested Shareholder, or otherwise.
(3) From the date the Interested Shareholder first became an Interested
Shareholder until the Business Combination has been consummated, the following
requirements must be complied with unless the Continuing Directors otherwise
approve:
(i) the Interested Shareholder has not received, directly or
indirectly, the benefit (except proportionately as a shareholder) of any loan,
advance, guaranty, pledge, or other financial assistance, tax credit or
deduction, or other benefit from the Corporation or any of its subsidiaries;
(ii) there shall have been no failure to declare and pay in full,
when and as due or scheduled, any dividends required to be paid on any class or
series of the Corporation's shares;
(iii) there shall have been (a) no reduction in the annual rate of
dividends paid on Common Shares of the Corporation (except as necessary to
reflect any split of such shares), and (b) an increase in the annual rate of
dividends as necessary to reflect reclassification (including a reverse split),
recapitalization or any similar transaction which has the effect of reducing
the number of outstanding Common Shares; and
(iv) there shall have been no amendment or other modification to
any profit-sharing, employee stock ownership; employee stock purchase and
savings, employee pension or other employee benefit plan of the Corporation or
any of its subsidiaries, the effect of which is to change in any manner the
provisions governing the voting of any shares of capital stock of the
Corporation in or covered by such plan.
(4) A proxy or information statement describing the Business Combination
and complying with the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations under it (or any subsequent provisions
replacing that Act and the rules and regulations under it) has been mailed at
least 30 days prior to the completion of the Business Combination to the
holders of all outstanding Voting Stock. If deemed advisable by the
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Continuing Directors, the proxy or information statement shall contain a
recommendation by the Continuing Directors as to the advisability (or
inadvisability) of the Business Combination and/or an opinion by an investment
banking firm, selected by the Continuing Directors and retained at the expense
of the Corporation, as to the fairness (or unfairness) of the Business
Combination to the Independent Shareholders.
E. Other Applicable Voting Requirement. The affirmative votes or
approvals required to be received from shareholders of the Corporation under
Subdivisions B, C and H of this Article SIXTH are in addition to the vote of
the holders of any class of shares of capital stock of the Corporation
otherwise required by law, or by other provisions of these Articles of
Incorporation, or by the express terms of the shares of such class. The
affirmative votes or approvals required to be received from shareholders of the
Corporation under Subdivisions B, C and H of this Article SIXTH shall apply
even though no vote or a lesser percentage vote, may be required by law, or by
other provisions of these Articles of Incorporation, or otherwise. Any
authorization, approval or other action of the Continuing Directors under this
Article SIXTH is in addition to any required authorization, approval or other
action of the Board of Directors.
F. Continuing Directors. All actions required or permitted to be taken by
the Continuing Directors shall be taken with or without a meeting by the vote
or written consent of two-thirds of the Continuing Directors, regardless of
whether the Continuing Directors constitute a quorum of the members of the
Board of Directors then in office. In the event that the number of Continuing
Directors is at any time less than five, all power and authority of the
Continuing Directors under this Article SIXTH shall thereupon cease and
terminate, including, without limitation, the authority of the Continuing
Directors to authorize and approve a Business Combination under Subdivisions B
and C of this Article SIXTH and to approve a successor Continuing Director.
Two-thirds of the Continuing Directors shall have the power and duty,
consistent with their fiduciary obligations, to determine for the purpose of
this Article SIXTH, on the basis of information known to them:
(1) Whether any person is an Interested Shareholder;
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(2) Whether any person is an Affiliate or Associate of another;
(3) Whether any person has an agreement, arrangement, or understanding
with another or is acting in concert with another; and
(4) The Fair Market Value of property, securities or other consideration
(other than cash).
The good faith determination of the Continuing Directors on such matters
shall be binding and conclusive for purposes of this Article SIXTH.
G. Effect on Fiduciary Obligations of Interested Shareholders. Nothing
contained in this Article SIXTH shall be construed to relieve any Interested
Shareholder from any fiduciary obligations imposed by law.
H. Repeal. Notwithstanding any other provisions of these Articles of
Incorporation (and notwithstanding the fact that a lesser percentage vote may
be required by law or other provision of these Articles of Incorporation), the
provisions of this Article SIXTH may not be repealed, amended, supplemented or
otherwise modified, unless:
(1) The Continuing Directors (or, if there is no Interested
Shareholder, a majority vote of the whole Board of Directors of the
Corporation) recommend such repeal, amendment, supplement or modification and
such repeal, amendment or modification is approved by the affirmative vote of
the holders of not less than a simple majority of the outstanding Voting Stock;
or
(2) Such repeal, amendment, supplement or modification is approved by
the affirmative vote of holders of (a) not less than 80% of the outstanding
Voting Stock voting together as a single class, and (b) not less than 66 2/3%
of the outstanding Voting Stock held by all shareholders other than Interested
Shareholders voting together as a single class.
I. Further Considerations to Effect Business Combination. No Business
Combination shall be effected or consummated unless, in addition to the
consideration set forth in Subdivisions B, C, D and E of this Article SIXTH,
the Board of Directors of the Corporation,
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including the Continuing Directors shall consider all of the following factors
and any other factors which it (they) deem relevant:
(1) The Social and economic effects of the transaction on the
Corporation and its subsidiaries, employees, depositors, loan and other
customers, creditors and other elements of the communities in which the
Corporation and its subsidiaries operate or are located;
(2) The business and financial conditions and earnings prospects of the
Interested Shareholder, including, but not limited to, debt service and other
existing or likely financial obligations of the Interested Shareholder, and the
possible effect on other elements of the communities in which the Corporation
and its subsidiaries operate or are located, and
(3) The competence, experience and integrity of the Interested
Shareholder and his (its) or their management.
SEVENTH: Shareholders of the Corporation shall have no preemptive right
to purchase shares when issued by the Corporation.
EIGHTH: The Corporation shall indemnify its present and past Directors,
officers, employees and agents, and such other persons as it shall have powers
to indemnify, to the full extent permitted under, and subject to the
limitations of, Title 17 of the Ohio Revised Code. Additionally, and subject
to the limitations set forth below, the Corporation shall indemnify its present
and past Directors for personal liability for monetary damages resulting from
breach of their fiduciary duty as Directors. Notwithstanding the above, no
indemnification for personal liability shall be provided for: (i) any breach
of the Directors' duty of loyalty to the Corporation or its stockholder; (ii)
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) illegal distribution of dividends; and (iv)
any transaction from which the Director derived an improper personal benefit.