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Exhibit 3(A)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRSTMERIT CORPORATION
As of April 8, 1998
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 One Hundred and Sixty-Seven
Million, which shall be classified as follows:
(a) One Hundred and Sixty Million (160,000,000) 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 with out 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
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fraction of a share of Series A Preferred Stock. 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 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 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 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;
(iii) redeem or purchase or otherwise acquire for
consideration
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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 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
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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.
PART C. EXPRESS TERMS OF NO PAR VALUE PREFERRED STOCK
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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 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,
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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.
FIFTH: The authority of this Corporation, its shareholders and
directors, is subject to the following:
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(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.
SEVENTH:
(a) Except as otherwise expressly provided in this Article
SEVENTH, any Business
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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.
(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%)
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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.
(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
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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.
EIGHTH: These Amended and Restated Articles of Incorporation shall
supercede the existing articles of incorporation and amendments thereto.
Revised April 8, 1998
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