Exhibit 3.1
DCB FINANCIAL CORP
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF DCB FINANCIAL CORP
Pursuant to Sections 1701.01 et seq. of the Revised Code of Ohio, the following
shall be the Articles of Incorporation for DCB Financial Corp:
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 Lewis Center, 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 number of shares (collectively the "Shares") that the Corporation
is authorized to have outstanding is Nine Million Five Hundred Thousand
(9,500,000), consisting of: (i) 7,500,000 common shares, no par value (the
"Common Shares"); and (ii) 2,000,000 preferred shares, no par value (the
"Preferred Shares"). The Shares shall have the following terms:
Common Shares:
The holders of the Common Shares are entitled at all times to one (1) vote for
each Share and to such dividends as the Board of Directors (herein called the
"Board") may in its discretion periodically declare, subject, however, to any
voting and dividend rights of the holders of the Preferred Shares. In the event
of any liquidation, dissolution or winding up of the Corporation, the remaining
assets of the Corporation after the payment of all debts and necessary expenses
shall be distributed among the holders of the Common Shares pro rata in
accordance with their respective Share holdings, subject, however, to the rights
of the holders of the Preferred Shares then outstanding. The Common Shares are
subject to all of the terms and provisions of the Preferred Shares as
established by the Board in accordance with this Article FOURTH.
Preferred Shares:
The Board is hereby expressly authorized in its discretion to adopt amendments
to the Articles to provide for the issuance of one (1) or more series of
Preferred Shares; to establish periodically the number of Shares to be included
in each such series; and to fix the designation, powers, preferences, voting
rights, dividend rights and other rights of the Preferred Shares of each such
series and any qualifications, limitations or restrictions thereof, to the
fullest extent permitted by law. Preferred Shares redeemed or otherwise acquired
by the Corporation shall become authorized but unissued Preferred Shares, shall
be unclassified as to series, and may thereafter be reissued in the same manner
as other authorized but unissued Preferred Shares.
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. Except as otherwise provided in these Articles, the Corporation is
hereby authorized to purchase or redeem through action of the Board, without the
approval of the holders of any Shares of any class and upon such terms and
conditions as the Board determines: (1) Shares of any class or series issued by
the Corporation, subject to the express terms of such Shares; (2) any security
or other obligation of the Corporation which may confer upon the holder thereof
the right to convert such security or obligation into Shares of any class or
series authorized by these Articles; (3) any security or other obligation which
may confer upon the holder thereof the right to purchase Shares of any class or
series authorized by these Articles; and (4) Shares of any class or series
issued by the Corporation if and when any holder of such Shares desires to (or,
upon the happening of any event, is required to) sell such Shares.
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DCB FINANCIAL CORP
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.
Subject to Articles SIXTH and SEVENTH, 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.
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DCB FINANCIAL CORP
SIXTH: FAIR PRICE AND SUPER VOTE REQUIREMENT
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:
(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 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:
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DCB FINANCIAL CORP
(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.
(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:
(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
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DCB FINANCIAL CORP
(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 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
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DCB FINANCIAL CORP
upon the liquidation or dissolution of the 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 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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DCB FINANCIAL CORP
(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, 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: The Corporation shall not be subject to the provisions of Section
1701.831 of the Ohio Revised Code regarding "control share acquisitions" of
shares of the Corporation. This Article SEVENTH shall not be repealed, amended,
supplemented or otherwise modified unless such action is approved using the same
voting procedures set forth in Article SIXTH, subparagraph H.
EIGHTH: Shareholders of the Corporation shall have no preemptive right to
purchase shares when issued by the Corporation. No holder of any shares of any
class shall have the right to vote cumulatively in the election of the Board of
Directors.
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DCB FINANCIAL CORP
NINTH: 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.
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