Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
METROPOLITAN FINANCIAL CORP.
ARTICLE I
Name
The name of the corporation (hereinafter called the
"Corporation") is METROPOLITAN FINANCIAL CORP.
ARTICLE II
Principal Office
The principal office of the Corporation shall be
located in the City of Cleveland, County of Cuyahoga, State of Ohio.
ARTICLE III
Purposes
The purpose or purposes for which the Corporation is
formed are to engage in any lawful act or activity for which corporations may be
formed under the Ohio General Corporation Law.
ARTICLE IV
Authorized Shares of Capital Stock
The authorized number of shares of the Corporation is
20,000,000, of which 5,000,000 shall be shares of Class A Serial Preferred
Stock, without par value, as described in Part A of this Article IV (hereinafter
called "Class A Preferred Stock"), 5,000,000 shall be shares of Class B Serial
Preferred Stock, without par value, as described in Part B of this Article IV
(hereinafter called "Class B Preferred Stock"), and 10,000,000 shall be shares
of Common Stock, without par value, as described in Part C of this Article IV
(hereinafter called "Common Shares").
The sole Common Share issued and outstanding
immediately prior to the effectiveness of these Amended and Restated Articles of
Incorporation shall, upon such effectiveness, thereby and thereupon be
automatically changed into 3,125,635 Common Shares. The officers of the
Corporation shall make such provisions as they deem necessary or appropriate to
provide for the exchange of the certificate for the sole Common Share issued and
outstanding for certificates for Common Shares reflecting the foregoing change.
The stated capital of the Corporation shall not change as a result of the
foregoing change.
The express terms of each class are as follows:
PART A
Express Terms of the Class A Preferred Stock
Section 1. SERIES.
The Class A Preferred Stock may be issued from time
to time in series. All shares of Class A Preferred Stock shall be of equal rank
and the express terms thereof shall be identical, except in respect of the terms
that may be fixed by the Board of Directors as hereinafter provided, and each
share of each series shall be identical with all other shares of such series,
except that in the case of series on which dividends are cumulative the dates
from which dividends are cumulative may vary to reflect differences in the dates
of issue. Subject to the provisions of Sections 2 through 4, inclusive, of this
Part A, which shall apply to all Class A Preferred Stock, the Board of Directors
is hereby authorized to cause shares of Class A Preferred Stock to be issued in
one or more series and with respect to each such series to fix:
(a) The designation of the series, which may be by
distinguishing number, letter, or title.
(b) The authorized number of shares of the series,
which number the Board of Directors may, except to the extent otherwise provided
in the creation of the series, from time to time, increase or decrease, but not
below the number of shares thereof then outstanding.
(c) The dividend rate or rates (which may be fixed or
adjustable) of the shares of the series.
(d) The dates on which dividends, if declared, shall
be payable and, in the case of series on which dividends are cumulative, the
dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if
any, for shares of the series.
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(f) The amount, terms, conditions, and manner of
operation of any retirement or sinking fund to be provided for the purchase or
redemption of shares of the series.
(g) The amounts payable on shares of the series in
the event of any liquidation, dissolution, or winding up of the affairs of the
Corporation.
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other series or class, and, if
so, the specification of such other class or series, the conversion price or
prices or rate or rates, any adjustment thereof, and all other terms and
conditions upon which such conversion may be made.
(i) The restrictions, if any, upon the issue of any
additional shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from
time to time amendments to these Amended and Restated Articles of Incorporation
fixing, with respect to each series, the matters described in clauses (a)
through (i), inclusive, of this Section 1.
Section 2. VOTING RIGHTS.
(a) The holders of Class A Preferred Stock shall be
entitled to one vote for each share of Class A Preferred Stock held by them,
respectively, on each matter properly submitted to shareholders for their vote,
consent, waiver, release or other action; and except as otherwise provided in
this Section 2 or required by law, the holders of Class A Preferred Stock and
holders of Common Shares shall vote together as one class on all matters.
(b) If the Corporation shall fail to pay full
cumulative dividends on any series of Class A Preferred Stock or Class B
Preferred Stock for six quarterly dividend payment periods, whether or not
consecutive, the number of directors will be increased by two, and the holders
of all outstanding series of Class A Preferred Stock and Class B Preferred
Stock, voting as a single class without regard to series, will be entitled to
elect such additional two directors until full cumulative dividends for all past
dividend payment periods on all series of Class A Preferred Stock and Class B
Preferred Stock have been paid or declared and set apart for payment or until
non-cumulative dividends have been paid regularly for at least one full year.
Such right to vote separately as a class to elect directors shall, when vested,
be subject, always, to the same provisions for the vesting of such right to
elect directors separately as a class in the case of future dividend defaults.
At any time when such right to elect directors separately as a class shall have
so vested, the Corporation may, and upon the written request of the holders of
record of not less than twenty percent of the total number of shares of the
Class A Preferred Stock and Class B Preferred Stock then outstanding shall, call
a special meeting of shareholders for the election of such directors. In the
case of such a written request,
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such special meeting shall be held within ninety days after the delivery of such
request and, in either case, at the place and upon the notice provided by law
and in the regulations of the Corporation, provided that the Corporation shall
not be required to call such a special meeting if such request is received less
than 120 days before the date fixed for the next ensuing annual meeting of
shareholders of the Corporation. Directors elected as aforesaid shall serve
until the next annual meeting of shareholders of the Corporation or until their
respective successors shall be elected and qualify. If, prior to the end of the
term of any director elected as aforesaid, a vacancy in the office of such
director shall occur during the continuance of a default in dividends on any
series of Class A Preferred Stock or Class B Preferred Stock by reason of death,
resignation or disability, such vacancy shall be filled for the unexpired term
by the appointment by the remaining director or directors elected as aforesaid
of a new director for the unexpired term of such former director.
(c) The affirmative vote or consent of the holders of
at least two-thirds of the then outstanding shares of Class A Preferred Stock,
given in person or by proxy, either in writing or at a meeting called for the
purpose at which the holders of Class A Preferred Stock shall vote separately as
a class, shall be necessary to effect any amendment, alteration, or repeal of
any of the provisions of these Amended and Restated Articles of Incorporation or
the regulations of the Corporation which would be substantially prejudicial to
the voting powers, rights, or preferences of the holders of Class A Preferred
Stock (but so far as the holders of Class A Preferred Stock are concerned, such
action may be effected with such vote or consent); provided, however, that
neither the amendment of these Amended and Restated Articles of Incorporation to
authorize or to increase the authorized or outstanding number of shares of any
class ranking junior to or on a parity with the Class A Preferred Stock, nor the
amendment of the regulations so as to change the number of directors of the
Corporation, shall be deemed to be substantially prejudicial to the voting
powers, rights, or preferences of the holders of Class A Preferred Stock (and
any such amendment referred to in this proviso may be made without the vote or
consent of the holders of the Class A Preferred Stock); and provided further
that if such amendment, alteration, or repeal would be substantially prejudicial
to the rights or preferences of one or more but not all then outstanding series
of Class A Preferred Stock, the affirmative vote or consent of the holders of at
least two-thirds of the then outstanding shares of the series so affected shall
be required.
(d) The affirmative vote or consent of the holders
of at least two-thirds of the then outstanding shares of Class A Preferred
Stock given in person or by proxy, either in writing or at a meeting called
for the purpose at which the holders of Class A Preferred Stock shall vote as
a single class shall be necessary to effect any one or more of the following:
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(i) The authorization of, or the increase in the
authorized number of, any shares of any class ranking prior to the
Class A Preferred Stock; or
(ii) The purchase or redemption for sinking fund
purposes or otherwise of less than all of the then outstanding Class A
Preferred Stock except in accordance with a purchase offer made to all
holders of record of Class A Preferred Stock, unless all dividends on
all Class A Preferred Stock then outstanding for all previous dividend
periods shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto shall have
been complied with.
Section 3. PREEMPTIVE RIGHTS.
No holder of Class A Preferred Stock shall be
entitled as such as a matter of right to subscribe for or purchase any part of
any issue of shares of the Corporation, of any class whatsoever, or any part of
any issue of securities convertible into shares of the Corporation, of any class
whatsoever, and whether issued for cash, property, services or otherwise.
Section 4. DEFINITIONS.
For the purposes of this Part A:
(a) Whenever reference is made to shares "ranking
prior to the Class A Preferred Stock," such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distributions in the event of a
liquidation, dissolution or winding up of the Corporation are given preference
over the rights of the holders of Class A Preferred Stock.
(b) Whenever reference is made to shares "on a parity
with the Class A Preferred Stock," such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distributions in the event of a
liquidation, dissolution or winding up of the Corporation rank on an equality
or parity with the rights of the holders of Class A Preferred Stock.
(c) Whenever reference is made to shares "ranking
junior to the Class A Preferred Stock," such reference shall mean and include
all shares of the Corporation in respect of which the rights of the holders
thereof either as to the payment of dividends and as to distributions in the
event of a liquidation, dissolution or winding up of the Corporation are
junior or subordinate to the rights of the holders of Class A Preferred Stock.
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PART B
Express Terms of the Class B Preferred Stock
Section 1. SERIES.
The Class B Preferred Stock may be issued from time
to time in series. All shares of Class B Preferred Stock shall be of equal rank
and the express terms thereof shall be identical, except in respect of the terms
that may be fixed by the Board of Directors as hereinafter provided, and each
share of each series shall be identical with all other shares of such series,
except that in the case of series on which dividends are cumulative the dates
from which dividends are cumulative may vary to reflect differences in the dates
of issue. Subject to the provisions of Sections 2 through 4, inclusive, of this
Part B, which shall apply to all Class B Preferred Stock, the Board of Directors
is hereby authorized to cause shares of Class B Preferred Stock to be issued in
one or more series and with respect to each such series to fix:
(a) The designation of the series, which may be by
distinguishing number, letter, or title.
(b) The authorized number of shares of the series,
which number the Board of Directors may, except to the extent otherwise provided
in the creation of the series, from time to time, increase or decrease, but not
below the number of shares thereof then outstanding.
(c) The dividend rate or rates (which may be fixed or
adjustable) of the shares of the series.
(d) The dates on which dividends, if declared, shall
be payable and, in the case of series on which dividends are cumulative, the
dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if
any, for shares of the series.
(f) The amount, terms, conditions, and manner of
operation of any retirement or sinking fund to be provided for the purchase or
redemption of shares of the series.
(g) The amounts payable on shares of the series in
the event of any liquidation, dissolution, or winding up of the affairs of the
Corporation.
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(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other series or class, and, if
so, the specification of such other class or series, the conversion price or
prices or rate or rates, any adjustment thereof, and all other terms and
conditions upon which such conversion may be made.
(i) The restrictions, if any, upon the issue of any
additional shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from
time to time amendments to these Amended and Restated Articles of Incorporation
fixing, with respect to each series, the matters described in clauses (a)
through (i), inclusive, of this Section 1.
Section 2. VOTING RIGHTS.
(a) Except as provided in this Section 2 or except as
required by applicable law, the holders of Class B Preferred Stock shall not be
entitled to vote upon matters presented to the shareholders.
(b) If the Corporation shall fail to pay full
cumulative dividends on any series of Class B Preferred Stock or Class A
Preferred Stock for six quarterly dividend payment periods, whether or not
consecutive, the number of directors will be increased by two, and the holders
of all outstanding series of Class B Preferred Stock and Class A Preferred
Stock, voting as a single class without regard to series, will be entitled to
elect such additional two directors until full cumulative dividends for all past
dividend payment periods on all series of Class B Preferred Stock and Class A
Preferred Stock have been paid or declared and set apart for payment or until
non-cumulative dividends have been paid regularly for at least one full year.
Such right to vote separately as a class to elect directors shall, when vested,
be subject, always, to the same provisions for the vesting of such right to
elect directors separately as a class in the case of future dividend defaults.
At any time when such right to elect directors separately as a class shall have
so vested, the Corporation may, and upon the written request of the holders of
record of not less than twenty percent of the total number of shares of the
Class B Preferred Stock and Class A Preferred Stock then outstanding shall, call
a special meeting of shareholders for the election of such directors. In the
case of such a written request, such special meeting shall be held within ninety
days after the delivery of such request and, in either case, at the place and
upon the notice provided by law and in the regulations of the Corporation,
provided that the Corporation shall not be required to call such a special
meeting if such request is received less than 120 days before the date fixed for
the next ensuing annual meeting of shareholders of the Corporation. Directors
elected as aforesaid shall serve until the next annual meeting of shareholders
of the Corporation or until their respective successors shall be elected and
qualify. If, prior to the end of the term of any director elected as aforesaid,
a vacancy in the office of such director shall occur during the continuance of a
default in dividends on any series of Class B Preferred Stock or Class A
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Preferred Stock by reason of death, resignation or disability, such vacancy
shall be filled for the unexpired term by the appointment by the remaining
director or directors elected as aforesaid of a new director for the unexpired
term of such former director.
(c) The affirmative vote or consent of the holders of
at least two-thirds of the then outstanding shares of Class B Preferred Stock,
given in person or by proxy, either in writing or at a meeting called for the
purpose at which the holders of Class B Preferred Stock shall vote separately as
a class, shall be necessary to effect any amendment, alteration, or repeal of
any of the provisions of these Amended and Restated Articles of Incorporation or
the regulations of the Corporation which would be substantially prejudicial to
the voting powers, rights, or preferences of the holders of Class B Preferred
Stock (but so far as the holders of Class B Preferred Stock are concerned, such
action may be effected with such vote or consent); provided, however, that
neither the amendment of these Amended and Restated Articles of Incorporation to
authorize or to increase the authorized or outstanding number of shares of any
class ranking junior to or on a parity with the Class B Preferred Stock, nor the
amendment of the regulations so as to change the number of directors of the
Corporation, shall be deemed to be substantially prejudicial to the voting
powers, rights, or preferences of the holders of Class B Preferred Stock (and
any such amendment referred to in this proviso may be made without the vote or
consent of the holders of the Class B Preferred Stock); and provided further
that if such amendment, alteration, or repeal would be substantially prejudicial
to the rights or preferences of one or more but not all then outstanding series
of Class B Preferred Stock, the affirmative vote or consent of the holders of at
least two-thirds of the then outstanding shares of the series so affected shall
be required.
(d) The affirmative vote or consent of the holders
of at least two-thirds of the then outstanding shares of Class B Preferred
Stock given in person or by proxy, either in writing or at a meeting called
for the purpose at which the holders of Class B Preferred Stock shall vote as
a single class shall be necessary to effect any one or more of the following:
(i) The authorization of, or the increase in the
authorized number of, any shares of any class ranking prior to the
Class B Preferred Stock; or
(ii) The purchase or redemption for sinking fund
purposes or otherwise of less than all of the then outstanding Class B
Preferred Stock except in accordance with a purchase offer made to all
holders of record of Class B Preferred Stock, unless all dividends on
all Class B Preferred Stock then outstanding for all previous dividend
periods shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto shall have
been complied with.
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Section 3. PREEMPTIVE RIGHTS.
No holder of Class B Preferred Stock shall be
entitled as such as a matter of right to subscribe for or purchase any part of
any issue of shares of the Corporation, of any class whatsoever, or any part of
any issue of securities convertible into shares of the Corporation, of any class
whatsoever, and whether issued for cash, property, services or otherwise.
Section 4. DEFINITIONS.
For the purposes of this Part B:
(a) Whenever reference is made to shares "ranking
prior to the Class B Preferred Stock," such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distributions in the event of a
liquidation, dissolution or winding up of the Corporation are given preference
over the rights of the holders of Class B Preferred Stock.
(b) Whenever reference is made to shares "on a parity
with the Class B Preferred Stock," such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distributions in the event of a
liquidation, dissolution or winding up of the Corporation rank on an equality
or parity with the rights of the holders of Class B Preferred Stock.
(c) Whenever reference is made to shares "ranking
junior to the Class B Preferred Stock," such reference shall mean and include
all shares of the Corporation in respect of which the rights of the holders
thereof either as to the payment of dividends and as to distributions in the
event of a liquidation, dissolution or winding up of the Corporation are
junior or subordinate to the rights of the holders of Class B Preferred Stock.
PART C
Express Terms of Common Shares
Section 1. GENERAL.
The holders of Common Shares shall be entitled to one
vote for each Common Share held by them, respectively, on each matter properly
submitted to shareholders for their vote, consent, waiver, release or other
action.
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Section 2. PREEMPTIVE RIGHTS.
No holder of Common Shares shall be entitled as such
as a matter of right to subscribe for or purchase any part of any issue of
shares of the Corporation of any class whatsoever, or any part of any issue of
securities convertible into shares of the Corporation, of any class whatsoever,
and whether issued for cash, property, services, or otherwise.
PART D
Cumulative Voting
No holder of shares of any class of the Corporation
may cumulate his or her voting power.
ARTICLE V
Purchase of Shares
Subject to the provisions of Article IV hereof, the
Corporation, by action of its directors, and without action by its shareholders,
may, from time to time, purchase its own shares of any class in accordance with
the provisions of the Ohio General Corporation Law; and such purchase may be
made either in the open market, or at public or private sales, in such manner
and amounts, from such holder or holders of outstanding shares of the
Corporation and at such price as the directors shall, from time to time,
determine.
ARTICLE VI
Voting
Any proposal which, under applicable law, requires
the approval of holders of shares of the Corporation:
(1) to adopt an amendment to these articles of incorporation (which
term includes amended and restated articles of incorporation),
(2) to sell, exchange, transfer, or otherwise dispose of all, or
substantially all, the assets of the Corporation,
(3) to effect a merger or consolidation involving the Corporation,
(4) to effect a combination or majority share acquisition (as such
terms are defined by the laws of the State of Ohio), or
(5) to dissolve, liquidate, or wind up the affairs of the Corporation,
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may be authorized and approved by the affirmative vote of the holders of shares
entitling them to exercise a majority of the voting power of the Corporation on
such proposal and, if a proposal upon which holders of shares of a particular
class or classes are required to vote separately as a class by other provisions
of these articles of incorporation or law, by the affirmative vote of the
holders of shares entitling them to exercise a majority of the voting power of
such class or classes, except as otherwise provided in Section 2 of Part A and
Section 2 of Part B of Article IV with respect to the Class A Preferred Stock
and Class B Preferred Stock of the Corporation. Notwithstanding the foregoing,
the provisions of this Article VI shall not reduce the vote of shareholders
required to approve a transaction which requires shareholder approval under
Chapter 1704 of the Ohio Revised Code.
ARTICLE VII
Transactions with Directors or Officers
A director or officer of the Corporation shall not be disqualified by
his or her office from dealing or contracting with the Corporation as a seller,
purchaser, employee, agent, or otherwise, nor shall any contract or transaction
be void or voidable with respect to the Corporation for the reason that it is
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other person in which one or more of its directors or
officers are directors, trustees, or officers, or have a financial or personal
interest, or for the reason that one or more interested directors or officers
participate in or vote at the meeting of the directors or a committee thereof
that authorizes such contract or transaction, if in any such case (a) the
material facts as to his, her or their relationship or interest and as to the
contract or transaction are disclosed or are known to the directors or the
committee and the directors or committee, in good faith reasonably justified by
such facts, authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested directors
constitute less than a quorum of the directors or the committee; or (b) the
material facts as to his, her or their relationship or interest and as to the
contract or transaction are disclosed or are known to the shareholders entitled
to vote thereon and the contract or transaction is specifically approved at a
meeting of the shareholders held for such purpose by the affirmative vote of the
holders of shares entitling them to exercise a majority of the voting power of
the Corporation held by persons not interested in the contract or transaction;
or (c) the contract or transaction is fair as to the Corporation as of the time
it is authorized or approved by the directors, a committee thereof, or the
shareholders.
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