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EXHIBIT 3(i)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRSTMERIT CORPORATION
As of April, 1995
FIRST: The name of the Corporation shall be FIRSTMERIT CORPORATION.
SECOND: The place in Ohio where its principal office is to be located
is in the City of Akron in Summit County, but the Corporation may establish and
maintain its principal office, or other offices, at other places in the United
States of America, as its Board of Directors may, from time to time, determine.
THIRD: The purposes for which the Corporation is formed are as follows:
(a) To engage in business as a "bank holding company" in
accordance with the provisions of The Bank Holding Company Act of 1956
(Pub. Law 511, 84th Cong. 2d Sess., approved May 9, 1956), as amended
(hereinafter referred to as the "Act"), and in furtherance thereof to
purchase or otherwise acquire, own, hold for investment and otherwise
deal with or dispose of real and personal property of every kind, type
and description, wherever situated, and securities, including but not
limited to its own securities and the securities of "banks,"
"companies" and other "bank holding companies," as those terms are
defined in the Act, to render services and otherwise engage in any and
all activities pertinent and appropriate to the operation of a bank
holding company; provided, however, that the Corporation shall not own
or hold properties or securities, render any services or engage in any
activities which are prohibited by the Act, or the regulations
promulgated by the Board of Governors of the Federal Reserve System
thereunder, as amended from time to time.
For the purpose of this paragraph, "securities" shall mean any
and all stocks, bonds, debentures, notes, acceptances, evidences of
indebtedness or other obligations, certificates of interest or
participation in any property or ventures, scrip, interim receipts,
voting trust certificates, any interests or instruments commonly known
as securities, and any and all certificates of interest or
participation in, or of deposit of, any of the foregoing, or receipts
for, guaranties of, or warrants or rights to subscribe for or purchase
the same.
(b) In general, to engage in any other lawful act or activity
for which corporations may be formed under Chapter 1701 of the Ohio
Revised Code to the extent that such act or activity is not prohibited
by the Act, or the regulations promulgated thereunder, as amended from
time to time.
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FOURTH:
PART A. CLASSES OF STOCK
The maximum number of shares which the Corporation is authorized to
issue and to have outstanding at any time shall be Eighty-Seven Million, which
shall be classified as follows:
(a) Eighty Million (80,000,000) of said shares shall be
Common Stock, without par value; and
(b) Seven Million (7,000,000) of said shares shall be Series
Preferred Stock without par value (no par value Preferred Stock).
PART B. SERIES A PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Preferred Stock" (the "Series A Preferred Stock")
and the number of shares constituting the Series A Preferred Stock shall be
five hundred thousand (500,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, no par value, (the "Common Stock") of the
Corporation, and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable
in cash on (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (i) $1 or (ii) subject to
the provision for adjustment hereinafter set forth 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any
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time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (a) of this
Section immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends
on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation
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shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or
any similar stock, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and all
such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all
such shares are then entitled;
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(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred
Stock subject to the conditions and restrictions on issuance set forth herein,
in the Restated Articles of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of Shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except distributions
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made ratably on the Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. NO REDEMPTION. The shares of Series A Preferred Stock
shall not be redeemable.
SECTION 9. RANK. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
SECTION 10. AMENDMENT. The Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special Rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least a majority of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
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PART C. EXPRESS TERMS OF NO PAR VALUE PREFERRED STOCK
The express terms and provisions of the no par value Preferred Stock
shall be as follows:
SECTION 1. DESIGNATION. All shares of no par value Preferred
Stock shall be of equal rank and shall be identical except in respect to the
particulars as may be fixed and determined by the Board of Directors as
hereinafter provided, and each share of each series shall be identical in all
respects with all other shares of such series, except as to the date from which
dividends are cumulative.
The Board of Directors is hereby authorized in respect of any unissued
shares of no par value Preferred Stock to fix or change:
(a) The division of such shares into series, the designation
of each series (which may be by distinguishing number, letter or
title) and the authorized number of shares in each series, which
number may be increased (except where otherwise provided by the Board
of Directors in creating the series) or decreased (but not below the
number of shares thereof outstanding) by like action of the Board of
Directors;
(b) The annual dividend rates of each series;
(c) The dates at which dividends, if declared, shall be
Payable;
(d) The redemption rights and price or prices, if any, for
shares of the series;
(e) The terms and amounts of any Sinking Fund provided for the
purchase or redemption of shares of the series;
(f) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation;
(g) Whether the shares of the series shall be convertible
into Common Stock and, if so, the conversion price or prices and the
adjustments thereof, if any, and all other terms and conditions upon
which such conversion may be made; and
(h) Restrictions on the issuance of shares of the same
series or of any other class or series.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS. The holders of the no par
value Preferred Stock of each series shall be entitled to receive out of any
funds legally available for no par value Preferred Stock as and when declared
by the Board of Directors, dividends in cash at the rate for such series fixed
by the Board of Directors in the manner set forth in Section 1 hereof and no
more, payable quarterly on the dates fixed for such series. Such dividends
shall be cumulative, in the case of shares of each particular series, from and
after the date of issuance
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thereof. No dividends may be paid or declared or set apart for any of the no
par value Preferred Stock for any quarterly dividend period unless at the same
time a like proportionate dividend for the same quarterly dividend period,
ratably in proportion to the respective annual dividend rates fixed therefor,
shall be paid upon or declared or set apart for all no par value Preferred
Stock, of all series then issued and outstanding and entitled to receive such
dividend.
SECTION 3. CERTAIN RESTRICTIONS. In no event, so long as any
no par value Preferred Stock shall be outstanding, shall any dividends, except
a dividend payable in Common Stock, be paid or declared or any distribution be
made, except as aforesaid, on the Common Stock, nor shall any Common Stock be
purchased, retired or otherwise acquired by the corporation:
(a) Unless all accrued and unpaid dividends on no par value
Preferred Stock, including the full dividends for the current
quarterly dividend period, shall have been declared and paid, or a sum
sufficient for payment thereof set apart; and
(b) Unless there shall be no arrearages with respect to the
redemption of no par value Preferred Stock of any series from any
Sinking Fund provided for shares of such series by the Board of
Directors in the manner set forth in Section 1 hereof.
SECTION 4. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Subject to the provisions hereof, the holders of the no
par value Preferred Stock of any series shall, in case of voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the corporation, be entitled to receive in full out of the assets of
the corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Stock the amounts
fixed with respect to shares of such series in accordance with the
decision of the Board of Directors in the manner set forth in Section
1 hereof plus an amount equal to all dividends accrued and unpaid
thereon to the date of payment of the amounts due pursuant to such
liquidation, dissolution or winding up of the affairs of the
corporation.
(b) The merger or consolidation of the corporation into or
with any other corporation, or the merger of any other corporation
into it, or the sale, lease or conveyance of all or substantially all
the property of the corporation, shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for
the purpose of this Section 4.
SECTION 5. VOTING RIGHTS. The holders of no par Preferred
Stock shall be entitled at all times to one (1) vote for each share; and,
except as required by law, the holders of such no par value Preferred Stock and
the holders of Common Stock of the corporation shall vote together as one (1)
class on all matters.
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FIFTH: The authority of this Corporation, its shareholders and
directors, is subject to the following:
(a) No holder of shares of this Corporation, regardless of
class, shall be entitled as a matter of right to exercise any
preemptive rights, to subscribe for or to purchase shares of any
class, now or hereafter authorized, or to purchase or subscribe for
securities which are convertible into or exchangeable for shares of
the Corporation, regardless of class, or to which shall be attached or
appertain any warrants or rights entitling the holder thereof to
subscribe for or purchase shares of the Corporation, regardless of
class, except such rights to subscribe for or purchase, at such prices
and according to such terms and conditions as the Board of Directors
may, from time to time, approve and authorize in its sole discretion.
(b) The Corporation may purchase its shares, regardless of
class, from time to time, and upon such terms and conditions as the
Board of Directors shall determine; provided, however, that the
Corporation shall not purchase any of its shares if, after such
purchase, its assets would be less than its liabilities plus stated
capital and unless the Corporation first complies with Section 225.6
of Regulation Y, 12 C.F.R. 225.6, as promulgated and amended, from
time to time, by the Board of Governors of the Federal Reserve System,
to the extent that such regulation may be applicable to the purchase.
(c) No shareholder shall have the right to vote cumulatively
in the election of directors.
SIXTH: The Corporation may indemnify any director or officer, any
former director or officer of the Corporation and any person who is or has
served at the request of the Corporation as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise (and
his heirs, executors and administrators) against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, to the
full extent permitted by applicable law, as the same may be in effect from time
to time. The indemnification provided for herein shall not be deemed to
restrict the right of the Corporation to (i) indemnify employees, agents and
others as permitted by such law, (ii) purchase and maintain insurance or
provide similar protection on behalf of directors, officers or such other
persons against liabilities asserted against them or expenses incurred by them
arising out of their service to the Corporation as contemplated herein, and
(iii) enter into agreements with such directors, officers, employees, agents or
others indemnifying them against any and all liabilities (or such lesser
indemnification as may be provided in such agreements) asserted against them or
incurred by them arising out of their service to the Corporation as
contemplated herein.
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SEVENTH:
(a) Except as otherwise expressly provided in this Article
SEVENTH, any Business Combination (as hereinafter defined) with an
Interested Party (as hereinafter defined) or any Affiliate (as
hereinafter defined) thereof shall require the affirmative vote of at
least eighty percent (80%) of the outstanding shares of each class of
capital stock of the Corporation issued and outstanding and entitled
to vote as a class and a majority of each class of those shares of
capital stock of the Corporation issued and outstanding and entitled
to vote as a class other than those shares beneficially owned by an
Interested Party and any Affiliate thereof. For the purpose of this
Article SEVENTH, an "Interested Party" is defined as a corporation,
person or entity that, together with all Affiliates thereof, is the
beneficial owner, directly or indirectly, of ten percent (10%) or more
of the shares of any class of capital stock of the Corporation issued
and outstanding and entitled to vote.
(b) The provisions of this Article SEVENTH set forth in
paragraph (a) hereof shall not apply to any Business Combination:
(1) with an Interested Party if the Board of Directors of
the Corporation shall have approved, by resolution, a
memorandum of understanding or agreement with such Interested
Party, a transaction substantially consistent with such
Business Combination prior to or simultaneously at the time
such Interested Party, together with all Affiliates thereof,
became the beneficial owner, directly or indirectly, of ten
percent (10%) or more of any class of the outstanding shares
of capital stock of the Corporation; or
(2) (i) which has been approved at any time before
consummation thereof by a two-thirds (2/3) vote of the total
membership of the Board of Directors of the Corporation and a
majority of the Continuing Directors (as hereinafter defined)
of the Corporation at the time of said vote; and
(ii) which provides for a price to be paid in cash for the
shares of capital stock of the Corporation in an amount not
less than the highest price, including commissions, previously
paid by such Interested Party for any of the shares of the
Corporation's capital stock of that class.
(c) For the purposes of this Article SEVENTH: (1) an
Interested Party shall be deemed to be the beneficial owner of any
shares of capital stock of the Corporation if such Interested Party
would be deemed the beneficial owner of such shares under the General
Rules and Regulations of the Securities Exchange Act of 1934 as
presently in effect, and (2) the term "Affiliate" shall have the
meaning ascribed to such term in Rule 12b-2 of such Rules and
Regulations as presently in effect.
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(d) A majority of the Continuing Directors shall determine for
the purposes of this Article SEVENTH, on the basis of information then
known to it, whether (1) any Interested Party beneficially owns,
together with its Affiliates, directly or indirectly, ten percent
(10%) or more of a class of the outstanding shares of capital stock of
the Corporation entitled to vote as a class, (2) any sale, lease,
exchange or other disposition of part of the assets of the Corporation
involves substantially all of the assets of the Corporation, (3) the
memorandum of understanding or agreement referred to above is
substantially consistent with the transaction to which it relates, and
(4) if an Interested Party purchases capital stock for consideration
other than cash, the "price" paid by the Interested Party for such
capital stock. A corporation, person or other entity purchasing shares
of capital stock of any class directly from the Corporation shall not
be deemed an Interested Person by reason of such purchase if such
determination is not made later than simultaneously with such
purchase. Any such determination by the Continuing Directors shall be
conclusive and binding for all purposes of this Article SEVENTH.
(e) A Business Combination, for the purposes of this Article
SEVENTH, shall mean:
(1) any merger or consolidation of the Corporation, or a
subsidiary of the Corporation, into or with any other person,
corporation or entity; or
(2) any sale, lease, mortgage, pledge, transfer or other
disposition of all or substantially all of the assets of the
Corporation to or with any other corporation, person or
entity; or
(3) any reclassification of securities (including a
reverse stock split) or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any
subsidiaries or any other transaction which has the effect of
increasing the proportionate share of the outstanding shares
of any class of equity or convertible securities of the
Corporation or any subsidiary which is directly or indirectly
owned by any corporation, person or other entity; or
(4) the issuance or transfer by the Corporation or any
subsidiary (in one transaction or a series of transactions) of
any securities of the Corporation or any subsidiary to any
corporation, person or entity of a number or amount of
securities equal to five percent (5%) or more of the then
outstanding number or amount of any class of the Corporation's
securities to a corporation, person or other entity; or
(5) the adoption of any plan as proposed for liquidation
or dissolution of the Corporation proposed by or on behalf of
any corporation, person or entity.
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(f) For the purposes of this Article SEVENTH, the term
Continuing Directors shall mean those members of the Board of
Directors of the Corporation (1) elected by the shareholders, or
otherwise appointed, prior to the time when the Interested Party and
any Affiliate acquired four percent (4%) of the shares of a class of
the capital stock of the Corporation issued and outstanding and
entitled to vote or (2) a person recommended to succeed a Continuing
Director by a majority of the Continuing Directors.
(g) This Article SEVENTH may not be amended or repealed except
by the affirmative vote of the holders of at least eighty percent
(80%) of the shares of each class of capital stock of the Corporation
issued and outstanding and entitled to vote as a class, and a majority
of those shares of each class of capital stock of the Corporation
issued and outstanding and entitled to vote as a class other than
those shares beneficially owned by an Interested Party and any
Affiliate thereof; provided, however, that the only vote required for
amendment or repeal shall be the affirmative vote of the holders of
two-thirds (2/3) of such issued and outstanding shares if the Board of
Directors of the Corporation proposes the amendment or repeal by
resolution approved by seventy-five percent (75%) of the total
membership of the Board of Directors and a majority of the Continuing
Directors.
Revised April, 1995
[1057761]
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