EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
MONTGOMERY FINANCIAL CORPORATION
The undersigned incorporator intending to organize a corporation (the
"Corporation") pursuant to the Indiana Business Corporation Law, I.C. ss.
23-1-17 et seq., as amended from time to time (the "Act") executes the following
Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is Montgomery Financial Corporation.
ARTICLE II
Purposes
The purposes for which the Corporation is formed are to transact any
and all business which may be lawfully transacted by corporations organized and
existing under the Act.
The Corporation shall have the power to transact its business in
Indiana and in any other state or nation, provided, that the provisions of this
Article II shall not be deemed to empower the Corporation to transact, in any
other state or nation, any business which cannot be transacted by corporations
under the laws of that state or nation.
ARTICLE III
Registered Agent and Registered Office
The address of the Corporation's initial Registered Office is 119 East
Main Street, Crawfordsville, Indiana 47933.
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The name of the Corporation's initial Registered Agent at that office
is Montgomery Savings, a Federal Association.
ARTICLE IV
Authorized Shares
The total number of shares which the Corporation has authority to issue
is ten million (10,000,000) shares.
ARTICLE V
Share Terms
Section 1. Designation of Classes, Number, and Par Value of Shares. The
authorized shares of the Corporation shall be divided into two million
(2,000,000) shares of preferred stock, with par value of one cent ($.01) per
share (the "Preferred Stock"), and eight million (8,000,000) shares of common
stock, with par value of one cent ($.01) per share (the "Common Stock").
Section 2. Rights, Privileges, Limitations and Restrictions of
Preferred Stock. The Board of Directors of the Corporation is hereby expressly
authorized to provide for the issuance of the shares of Preferred Stock and to
determine and state the designations and relative preferences, limitations,
voting rights, if any, and other rights of the Preferred Stock and of each
series of Preferred Stock by the adoption and filing in accordance with the Act,
before the issuance of any shares of such Preferred Stock or series of Preferred
Stock, of an amendment or amendments to these Articles of Incorporation
determining the terms of such Preferred Stock or series of Preferred Stock (the
"Preferred Stock Designation"). All shares of Preferred Stock of the same series
shall be identical with each other in all respects. The number of authorized
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shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the voting power of all of the then outstanding shares
of the capital stock of the Corporation entitled to vote generally in the
election of Directors after giving effect to the provisions in Article VIII
hereof (the "Voting Stock"), voting as a single class, without a separate vote
of the holders of the Preferred Stock or any series thereof, unless a vote of
any such holders is required pursuant to the terms of any Preferred Stock
Designation.
Section 3. Rights, Privileges, Limitations and Restrictions of Common
Stock. The shares of Common Stock shall constitute a separate and single class
and shall not be issued in series. All shares of Common Stock shall be identical
with each other in all respects. In the event of any voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, the holders of the
shares of Common Stock shall be entitled, after payment or provision for payment
of the debts and other liabilities of the Corporation and of all shares of stock
having priority over the Common Stock, in the event of voluntary or involuntary
liquidation, dissolution or winding up, to share rateably in the remaining net
assets of the Corporation. Subject to the limitations set forth in Article VIII
hereof, and except as otherwise provided in the Act, every holder of shares of
Common Stock shall have the right, at every Shareholder's meeting, to one vote
for each share of Common Stock standing in his name on the books of the
Corporation.
Section 4. Issuance of Shares. The Board of Directors has authority to
authorize and direct the issuance by the Corporation of shares of Preferred
Stock and Common Stock at such times, in such amounts, to such persons, for such
consideration, and upon such terms and conditions as it may from time to time
determine, subject only to the restrictions, limitations,
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conditions, and requirements imposed by the Act, other applicable laws, and
these Articles of Incorporation, as the same may, from time to time, be amended.
Section 5. Dividends and Distributions. The Board of Directors has
authority to authorize and direct the payment of dividends and the making of
other distributions by the Corporation in respect of the issued and outstanding
shares of Preferred Stock and Common Stock (a) at such times, in such amount and
forms, from such sources, and upon such terms and conditions as it may from time
to time determine, subject only to the restrictions, limitations, conditions,
and requirements imposed by the Act, other applicable laws, and these Articles
of Incorporation, as the same may, from time to time, be amended, and (b) in
shares of the same class or series or in shares of any other class or series
without obtaining the affirmative vote or the written consent of the holders of
the shares of the class or series in which the payment or distribution is to be
made.
Section 6. Acquisition of Shares by Corporation. The Board of Directors
has authority to authorize and direct the acquisition by the Corporation of the
issued and outstanding shares of Preferred Stock and Common Stock at such times,
in such amounts, from such persons, for such consideration, from such sources,
and upon such terms and conditions as it may, from time to time, determine,
subject only to the restrictions, limitations, conditions and requirements
imposed by the Act, other applicable laws, and these Articles of Incorporation,
as the same may, from time to time, be amended.
Section 7. Recognition and Disclosure of Beneficial Ownership. The
Board of Directors may establish in the By-Laws of the Corporation a recognition
procedure by which the beneficial owner of any share or right of the Corporation
that is registered on the books of the Corporation
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in the name of a nominee is recognized by the Corporation, to the extent
provided in any such recognition procedure, as the owner thereof. The Board of
Directors may establish in the Corporation's By-Laws a disclosure procedure by
which the name of the beneficial owner of any share or right of the Corporation
that is registered on the books of the Corporation in the name of a nominee
shall, to the extent not prohibited by the Act or other applicable laws, be
disclosed to the Corporation. Any disclosure procedure established by the Board
of Directors may include reasonable sanctions to ensure compliance therewith,
including without limitation (a) prohibiting the voting of, (b) providing for
mandatory or optional reacquisition by the Corporation of, and (c) the
withholding or payment into escrow of any dividend or other distribution in
respect of any share or right of the Corporation as to which the name of the
beneficial owner is not disclosed to the Corporation as required by such
disclosure procedure.
Section 8. No Preemptive Rights. The holders of the Common Stock and
the holders of the Preferred Stock or any series of the Preferred Stock shall
have no preemptive rights to subscribe to or purchase any shares of Common
Stock, Preferred Stock or other securities of the Corporation.
Section 9. Record Ownership. To the extent permitted by law, the
Corporation shall be entitled to treat the person in whose name any share or
right of the corporation is registered on the books of the Corporation as the
owner thereof for all purposes and shall not be bound to recognize any equitable
or other claim to, or interest in, such share or right on the part of any other
person, whether or not the Corporation shall have notice thereof.
Section 10. Amendment or Repeal of this Article. Notwithstanding
anything contained in the Articles of Incorporation or the By-laws of the
Corporation to the contrary, and
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notwithstanding that a lesser percentage or no vote may be specified by law, but
in addition to any affirmative vote of the holders of any particular class or
series of capital stock of the Corporation required by law or any Preferred
Stock designation, the affirmative vote of the holders of at least two-thirds of
the voting power of all of the then outstanding shares of Voting Stock, voting
together as a single class, shall be required to alter, amend, change or repeal
Sections 2, 4, and 8 of this Article.
ARTICLE VI
Directors
Section 1. Number and Terms. The number of Directors of the Corporation
shall be fixed from time to time exclusively by the Board of Directors by
resolution adopted by a majority of the total number of the Corporation's
Directors. The Board of Directors shall consist of seven persons as of the
effective date of these Articles of Incorporation. The Directors shall be
divided into three classes, as nearly equal in number as reasonably possible,
with one class to be elected annually. At the first shareholder's meeting at
which directors are elected following the effective date of the Articles of
Incorporation, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of the second
class shall be elected to hold office for a term expiring at the second
succeeding annual meeting, and directors of the third class shall be elected to
hold office for a term expiring at the third succeeding annual meeting, with
each director to hold office until his or her successor shall have been duly
elected and qualified. At each annual meeting of Shareholders following the
initial classification and election, Directors elected to succeed those
Directors whose terms expire shall be elected for a term of office to expire at
the third
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succeeding annual meeting of Shareholders after their election, with each
director to hold office until his or her successor shall have been duly elected
and qualified. Directors need not be Shareholders of the Corporation. There
shall be no cumulative voting by Shareholders of any class or series in the
election of Directors of the Corporation.
Section 2. Initial Directors. The names of the initial Board of
Directors of the Corporation are as follows:
John M. Malott Earl F. Elliott
Mark E. Foster J. Lee Walden
Robert C. Wright C. Rex Henthorn
John E. Woodward
The address of each of the initial directors shall be the address of
the Corporation, which is 119 East Main Street, Crawfordsville, Indiana 47933.
Section 3. Vacancies. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office, or other cause shall be
filled by a majority vote of the Continuing Directors, as defined in Section 2
of Article VIII hereof, although less than a quorum of the Board of Directors.
Directors so chosen shall hold office for a term expiring at the annual meeting
of Shareholders at which the term of the class to which they have been elected
expires, and until such Director's successors shall have been duly elected
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and qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
Section 4. Removal of Directors. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, any Director, or the entire
Board of Directors may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at least two-thirds of the
voting power of all of the then-outstanding shares of the Corporation entitled
to vote generally in the election of Directors voting together as a single
class. For purposes of this section, cause for removal shall exist only if the
director whose removal is proposed has been either declared of unsound mind by
an order of a court of competent jurisdiction, convicted of a felony or of an
offense punishable by imprisonment for a term of more than one year by a court
of competent jurisdiction, or deemed liable by a court of competent jurisdiction
for gross negligence or misconduct in the performance of such director's duties
to the Corporation. At least thirty (30) days prior to such meeting of
stockholders, written notice shall be sent to the director whose removal will be
considered at the meeting.
Section 5. Shareholder Nominations and Business Agenda. Advance notice
of Shareholder nominations for the election of Directors and of business to be
brought by Shareholders before any meeting of the Shareholders of the
Corporation shall be given in the manner provided in the Corporation's By-Laws.
Section 6. Special Shareholder Meetings. Special meetings of the
Shareholders of the Corporation may only be called by the Board of Directors
pursuant to a resolution adopted
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by a majority of the total number of Directors then in office or the Chairman of
the Board or Chief Executive Officer.
Section 7. Bylaws. The Board of Directors of the Corporation shall have
the power, without the assent or vote of the Shareholders, to make, adopt,
alter, amend, or repeal the ByLaws of the Corporation by the affirmative vote of
the number of directors equal to a majority of the number constituting a full
Board of Directors at the time of such action. The By-Laws may include, in
addition to any other provisions allowable under these Articles or applicable
law, a provision setting forth age limitations for Officers and Directors of the
Corporation. Shareholders shall not have any power to make, alter, amend, or
repeal the Corporation's By-Laws.
Section 8. Director Considerations. In addition to any other
considerations which the Board of Directors may lawfully take into account in
determining whether to take or to refrain from taking any corporate action on
any matter, including making or declining to make any recommendation to the
Shareholders of the Corporation, the Board of Directors may in its discretion
consider both the short-term and long-term best interests of the Corporation
(including the possibility that these interests may be best served by the
continued independence of the Corporation), taking into account, and weighing as
the Directors deem appropriate, the social and economic effects of such action
on present and future employees, suppliers, customers of the Corporation and its
subsidiaries (including account holders and borrowers of any of the
Corporation's subsidiaries), the effect upon communities in which offices or
other facilities of the Corporation are located, the effect on the Corporation's
ability to fulfill its corporate obligations as a savings institution holding
company and on the ability of any of its subsidiary
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savings institutions to fulfill the objectives of a stock form saving
institution under applicable statutes and regulations, and any other factors the
Directors consider pertinent.
Section 9. Other Authorized Board Actions. In furtherance and
not in limitation of the powers conferred by law or in these Articles of
Incorporation as the same may, from time to time, be amended, the Board of
Directors (and any committee of the Board of Directors duly authorized by the
Board of Directors to so act) is expressly authorized, to the extent permitted
by law, to take such actions as the Board or such committee may determine to be
reasonably necessary or desirable to (a) encourage any person (as defined in
Article IX Section 3 hereof) to enter into negotiations with the Board of
Directors and management of the Corporation with respect to any transaction
which may result in a change in control of the Corporation which is proposed or
initiated by such person or (b) contest or oppose any such transaction which the
Board of Directors or any committee determines to be unfair, abusive, or
otherwise undesirable with respect to the Corporation and its business, assets
or properties, or the Shareholders of the Corporation including, without
limitation, the adoption of such plans or the issuance of such rights, options,
capital stock, notes, debentures, or other evidences of indebtedness or other
securities of the Corporation which issuance may be with or without
consideration, and may (but need not) be issued pro rata, which rights, options,
capital stock, notes, evidences of indebtedness and other securities (i) may be
exchangeable for or convertible into cash or other securities on such terms and
conditions as may be determined by the Board of Directors or such committee and
(ii) may provide for the treatment of any holder or class of holders thereof
designated by the Board of Directors or any such committee in respect of the
terms, conditions,
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provisions, and rights of such securities which is different from, and unequal
to, the terms, conditions, provisions, and rights applicable to all other
holders thereof.
Section 10. Amendment or Repeal of this Article. Notwithstanding
anything contained in the Articles of Incorporation or the By-Laws of the
Corporation to the contrary, and notwithstanding that a lesser percentage or no
vote may be specified by law, but in addition to any affirmative vote of the
holders of any particular class or series of capital stock of the Corporation
required by law or any Preferred Stock designation, the affirmative vote of the
holders of at least 80% of the voting power of all of the then-outstanding
shares of Voting Stock, voting together as a single class, shall be required to
alter, amend, change or repeal this Article.
ARTICLE VII
Provisions for Regulation of Business and
Conduct of Affairs of Corporation
Section 1. Amendment of Articles of Incorporation. Except as
otherwise provided in Articles V, VI, VIII, IX and X hereof, the Corporation
reserves the right to increase or decrease the number of its authorized shares,
or any class or series thereof, and to reclassify the same, and to amend, alter,
change or repeal any provision contained in these Articles of Incorporation, or
any amendment hereto, or to add any provision to these Articles of Incorporation
or to any amendment hereto, in any manner now or hereafter prescribed or
permitted by the Act or any other applicable laws, and all rights and powers
conferred upon Shareholders, Directors and/or officers in these Articles of
Incorporation, or any amendment hereto, are granted subject to this reserve
power. No Shareholder has a vested property right resulting from any provision
in these Articles of Incorporation, or any amendment hereto, or authorized to be
in the By-Laws of the Corporation or these Articles of Incorporation by the Act,
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including, without limitation, provisions relating to management, control,
capital structure, dividend entitlement, or purpose or duration of the
Corporation.
Section 2. Shareholder Action. Meetings of the Shareholders of the
Corporation shall be held at such a place, within or without the State of
Indiana, as may be specified in the By-Laws of the Corporation or in the
respective notices, or waivers of notice, thereof. Any action required or
permitted to be taken at any meeting of the Shareholders may be taken without a
meeting if a consent in writing setting forth the action so taken is signed by
all Shareholders entitled to vote with respect thereto and such written consent
is filed with the minutes of the proceedings of the Shareholders.
Section 3. Director Action. Meetings of the Board of Directors of the
Corporation or any committee thereof shall be held at such place, within or
without the State of Indiana as may be specified in the By-Laws of the
Corporation or in the respective notices, or waivers of notice thereof. Any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if a
consent in writing setting forth the actions so taken is signed by all members
of the Board of Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of the proceedings of such Board of
Directors or committee.
Section 4. Corporate Records. The Corporation shall keep at its
principal office a copy of (a) its Articles of Incorporation, and all amendments
thereto currently in effect; (b) its By-Laws or restated By-laws, and all
amendments thereto currently in effect; (c) resolutions adopted by the Board of
Directors with respect to one (1) or more classes or series of shares and fixing
their relative rights, preferences, and limitations, if shares issued pursuant
to those
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resolutions are outstanding; (d) minutes of all meetings of the Shareholders and
records of all actions taken by the Shareholders without a meeting (hereinafter
referred to collectively as the "Shareholders Minutes") for the prior three
years; (e) all written communications by the Corporation to the Shareholders,
including the financial statements furnished by the Corporation to the
Shareholders ("Shareholder Communications") for the prior three years; (f) a
list of the names and business addresses of the current Directors and Officers
of the Corporation; and (g) the most recent annual report of the Corporation as
filed with the Secretary of the State of Indiana. The Corporation shall also
keep and maintain at its principal office, or at such other place or places
within or without the State of Indiana as may be provided, from time to time, in
the By-Laws (i) minutes of all meetings of the Board of Directors and of each
committee of such Board, and records of all actions taken by the Board of
Directors and by each committee without a meeting and (ii) appropriate
accounting records of the Corporation. All of the records of the Corporation
described in this Section 4 (hereinafter referred to collectively as the
"Corporation Records") shall be maintained in written form or in another form
capable of conversion into written form within a reasonable time period.
Section 5. Limitation of Liability. No Director, member of any
committee of the Board of Directors or of another committee appointed by the
Board, Officer, employee, or agent of the Corporation ("Corporate Person") shall
be liable for any loss or damage if, in taking or omitting to take any action
causing such loss or damage, either (a) such Corporate Person acted (1) in good
faith, (2) with the care an ordinarily prudent person in a like position would
have exercised under similar circumstances, and (3) in a manner such Corporate
Person reasonably believed was in the best interests of the Corporation, or (b)
such Corporate Person's breach of
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or failure to act in accordance with the standards of conduct set forth
immediately above in clause (a) (the "Standards of Conduct") did not constitute
willful misconduct or recklessness.
Any "Corporate Person" shall be fully protected, and shall be deemed to
have complied with the Standards of Conduct, in relying in good faith, with
respect to any information contained therein, upon (a) the Corporate Records,
(b) information, opinions, reports, or statements (including financial
statements and other financial data) prepared or presented by (1) one or more
other Corporate Persons whom such Corporate Person reasonably believes to be
competent in the matters presented, (2) legal counsel, public accountants, or
other persons as matters that such Corporate Person reasonably believes are
within such person's professional or expert competence, (3) a committee of the
Board of Directors or other committee appointed by the Board of Directors of
which such Corporate Person is not a member, if such Corporate Person reasonably
believes such committee of the Board of Directors or such appointed committee
merits confidence, or (4) the Board of Directors, if such Corporate Person is
not a Director and reasonably believes that the Board merits confidence.
Section 6. Conflict Transactions. Any contract or any transaction
between the Corporation and any Director or any corporation, unincorporated
association, business trust, estate, partnership, trust, joint venture,
individual or other legal entity ("Legal Entity") in which any director has a
material financial interest or is a general partner, or of which any Director is
a director, officer, or trustee (hereinafter referred to collectively as a
"Conflict Transaction"), shall be valid for all purposes, if the material facts
of the Conflict Transaction and the Director's interest were disclosed or known
to the Board of Directors, a committee of the Board of Directors with authority
to act thereon, or the Shareholders entitled to vote thereon, and the
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Board of Directors, such committee, or such Shareholders authorized, approved,
or ratified the Conflict Transaction. A Conflict Transaction is authorized,
approved, or ratified:
a. By the Board of Directors or such committee, if it receives the
affirmative vote of a majority of the Directors who have no
interest in the Conflict Transaction, notwithstanding the fact
that such majority may not constitute a quorum or a majority of
the Board of Directors or such committee or a majority of the
Directors present at the meeting, and notwithstanding the
presence or vote of any Director who does have such an interest;
provided, however, that no Conflict Transaction may be
authorized, approved or ratified by a single Director; and
b. By such Shareholders, if it receives the vote of a majority of
the shares entitled to be counted, in which vote shares owned or
voted under the control of any Director who, or of any Legal
Entity that, has an interest in the Conflict Transaction may not
be counted; provided, however, that a majority of such shares,
whether or not present, shall constitute a quorum for the purpose
of authorizing, approving, or ratifying a Conflict Transaction.
This Section 6 shall not be construed to require authorization,
ratification, or approval by the Shareholders of any Conflict Transaction, or to
invalidate any Conflict Transaction that would otherwise be valid under the
common and statutory law applicable thereto.
Section 7. Director Compensation. The Board of Directors is hereby
specifically authorized, in and by the By-Laws of the Corporation, or by
resolution duly adopted by such Board, to make provision for reasonable
compensation to its members for their services as Directors and to fix the basis
and conditions upon which such compensation shall be paid. Any Director of the
Corporation may also serve the Corporation in any other capacity and receive
compensation therefor in any form.
Section 8. Director Authority. The Board of Directors, subject to any
specific limitations or restrictions imposed by the Act or these Articles of
Incorporation, as the same may from time to time be amended, shall direct the
carrying out of the purposes and exercise the
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powers of the Corporation without previous authorization or subsequent approval
by the Shareholders of the Corporation.
ARTICLE VIII
Ownership and Voting Restrictions
Section 1. Ten Percent Limitations. Notwithstanding anything contained
in these Articles of Incorporation or the Corporation's By-Laws to the contrary
no person shall directly or indirectly offer to acquire or acquire the
beneficial ownership of more than ten percent (10%) of any class of equity
security of the Corporation. This limitation shall not apply to (i) the purchase
of shares by underwriters in connection with the public offering, (ii) to the
purchase of shares by a defined benefit or defined contribution employee benefit
plan such as an employees' stock ownership plan, stock bonus plan,
profit-sharing plan or other plan, which, with its related trust, meets the
requirements to be "qualified" under Section 401 of the Internal Revenue Code of
1986, as amended or (iii) any other offer or acquisition approved in advance by
the affirmative vote of two-thirds of the Company's Board of Directors.
In the event shares are acquired in violation of this Section 1, all
shares beneficially owned in excess of 10% shall be considered "excess shares"
and shall not be counted as shares entitled to vote and shall not be voted by
any person or counted as voting shares in connection with any matter submitted
to the shareholders for a vote.
For purposes of this Section 1, the term "person" shall have the
meaning set forth in Article IX, Section 3 hereof. The term "offer" includes
every offer to buy or otherwise acquire, solicitation of an offer to sell,
tender offer for, or request or invitation for tenders of, a security or
interest in a security for value. The term "acquire" includes every type of
acquisition,
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whether effected by purchase, exchange, operation of law, or otherwise. The term
"acting in concert" means (a) knowing participation in a joint activity or
conscious parallel action toward a common goal whether or not pursuant to an
express agreement, or (b) a combination or pooling of voting or other interests
in the securities of an issue or for a common purpose pursuant to any contract,
understanding, relationship, agreement, or other arrangement, whether written or
otherwise.
For purposes of determining the beneficial ownership limitation imposed
by this Section 1, warrants, options, obligations, or securities convertible
into such equity securities of the Corporation and other similar interests shall
be treated as having been exercised or converted into such equity securities.
Section 2. Amendment of this Article. Notwithstanding anything
elsewhere in these Articles of Incorporation or in the Corporation's By-Laws to
the contrary, and notwithstanding that a lesser percentage or no vote may be
specified by law, but in addition to any affirmative vote of the holders of any
particular class or series of capital stock of the Corporation required by law
or any Preferred Stock designation, the affirmative vote of the holders of at
least 80% of the total voting power of all of the then-outstanding shares of
Voting Stock, voting as a single class, shall be required to alter, amend, or
repeal this Article VIII, unless at least two-thirds of the Continuing Directors
(as defined below in this Section 2) shall have approved of the proposed changes
prior to their submission to Shareholders for their vote (in which case a
favorable vote of the percentage of the total votes eligible to be cast required
under the Act or other applicable law shall be required). For purposes of this
Section 2, a "Continuing Director" shall mean any Director then serving as such
who is a member of the Corporation's Board of
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Directors on the Corporation's date of incorporation, or was recommended for
appointment or election (before such person's initial assumption of office as a
Director) by a majority of the Continuing Directors then on the Board.
ARTICLE IX
Provisions for Certain Business Combinations
Section 1. Supermajority Provisions for Certain Business Combinations.
In addition to any affirmative vote required by law or these Articles of
Incorporation and except as otherwise expressly provided in Section 2 of this
Article IX;
a. Any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (1) any Interested Shareholder (as
hereinafter defined), or (2) any other corporation (whether or
not itself an Interested Shareholder) which is, or after such
merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Shareholder; or
b. Any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or a series of transactions) to
or with any Interested Shareholder or any Affiliate of any
Interested Shareholder, of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value equaling or
exceeding 25% or more of the combined assets of the Corporation
and its Subsidiaries; or
c. The issuance or transfer by the Corporation or any Subsidiary (in
one transaction or series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Shareholder
or any Affiliate of any Interested Shareholder in exchange for
cash, securities, or other property (or a combination thereof)
having an aggregate Fair Market Value equalling or exceeding 25%
of the combined assets of the Corporation and its Subsidiaries
except pursuant to an employee benefit plan of the Corporation or
any Subsidiary thereof; or
d. The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested
Shareholder; or
e. Any reclassification of securities (including any reverse stock
split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise
involving any Interested Shareholder) which has the
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effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or
series of equity or convertible securities of the Corporation
or any Subsidiary which is Beneficially Owned (as hereinafter
defined), directly or indirectly, by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of all of the then-outstanding shares of Voting Stock, voting together as
a single class and a majority vote of the shares of Voting Stock that are not
beneficially owned, directly or indirectly, by an Interested Person. Such
affirmative vote shall be required notwithstanding that any other provision of
these Articles of Incorporation, or any provision of law, or any Preferred Stock
designation, or any agreement with any national securities exchange or otherwise
might permit a lesser vote or no vote.
The term "Business Combination" as used in this Article IX shall mean
any transaction which is referred to in any one or more of paragraphs a. through
e. of this Section 1.
Section 2. When Supermajority Not Required. The provisions of Section 1
of this Article IX shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law, and any other provision of these Articles of
Incorporation, and any Preferred Stock Designation if, in the case of a Business
Combination that does not involve any cash or other consideration being received
by the Shareholders of the Corporation, solely in their capacity as Shareholders
of the Corporation, the condition specified in the following paragraph a. is met
or in the case of any other Business Combination, the conditions specified in
either of the following paragraphs a or b. are met:
a. The Business Combination shall have been approved by a majority
of the Continuing Directors (as hereinafter defined); provided,
however, that this
19
condition shall not be capable of satisfaction unless there are
at least three Continuing Directors.
b. All of the following conditions shall have been met:
1. The consideration to be received by the holders of shares of
a particular class (or series) of outstanding capital stock
(including Common Stock) shall be in cash or in the same
form as the Interested Shareholder or any of its affiliates
has previously paid for shares of such class (or series) of
capital stock. If the Interested Shareholder or any of its
Affiliates have paid for shares of any class (or series) of
capital stock with varying forms of considerations, the form
of consideration to be received per share by holders of
shares of such class (or series) of capital stock shall be
either cash or the form used to acquire the largest number
of shares of such class (or series) of capital stock
previously acquired by the Interested Shareholder.
2. The aggregate amount of (x) the cash and (y) the Fair Market
Value as of the date of the consummation of the Business
Combination (the "Consummation Date"), of the consideration
other than cash to be received per share by holders of
Common Stock in such Business Combination shall be at least
equal to the higher of the following (in each case
appropriately adjusted in the event of any stock dividend,
stock split, combination of shares or similar event):
i. (If applicable) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Shareholder or any of its Affiliates for any shares of
Common Stock acquired by them within the two-year
period immediately prior to the date of the first
public announcement of the proposal of the Business
Combination (the "Announcement Date") or in any
transaction in which the Interested Shareholder became
an Interested Shareholder, whichever is higher; and
ii. The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the
Interested Shareholder became an Interested Shareholder
(the "Determination Date"), whichever is higher.
3. The aggregate amount of (x) the cash and (y) the Fair Market
Value, as of the Consummation Date, of the consideration
other than cash to be received per share by holders of
shares of any class (or series), other than Common Stock, of
outstanding Capital Stock of the Corporation shall be at
least equal to the highest of the following (in each case
appropriately adjusted in the event of any stock dividend,
stock split, combination of shares or similar event), it
being intended that the requirements of this Subparagraph 3.
shall be required to be met with respect to every such class
(or series) of outstanding Capital Stock whether or not the
Interested Shareholder or any of its
20
Affiliates have previously acquired any shares of a
particular class (or series) of Capital Stock;
i. (If applicable) the highest per share price (including
any brokerage, commissions, transfer taxes and
soliciting dealer's fees) paid by the Interested
Shareholder or any of its Affiliates for any shares of
such class (or series) of Capital Stock acquired by
them within the two-year period immediately prior to
the Announcement Date or in any transaction in which it
became an Interested Shareholder, whichever is higher;
ii. The Fair Market Value per share of such class (or
series) of Capital Stock on the Announcement Date or on
the Determination Date, whichever is higher; and
iii. (If applicable) the highest preferential amount per
share, if any, to which the holders of shares of such
class (or series) of Capital Stock would be entitled in
the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation.
4. After such Interested Shareholder has become an Interested
Shareholder and prior to the Consummation Date of such
Business Combination:
(a) such Related Person shall vote his shares in such a
manner as to cause, to the extent necessary and within
his power as a stockholder, the Board of Directors of
the Corporation to include at all times representation
by Continuing Directors proportionate to the ratio that
the number of Voting Shares of the Corporation from
time to time owned by stockholders who are not Related
Persons bears to all Voting Shares of the Corporation
outstanding at the time in question (with a Continuing
Director to occupy any resulting fractional position
among the directors);
(b) (i) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any
outstanding Preferred Stock; (ii) there shall have been
(A) no reduction in the annual rate of dividends paid
on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by
a majority of the Continuing Directors, and (B) an
increase in such annual rate of dividends as necessary
to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization, or any
similar transaction which has the effect of reducing
the number of outstanding shares of the Common Stock,
unless the failure to increase such annual rate is
approved by a majority of the Continuing Directors; and
(iii) neither such Interested Shareholder nor any of
its Affiliates shall have become the beneficial owner
of any additional shares of Voting Stock except as part
of the
21
transaction which results in such Interested Share-
holder becoming an Interested Shareholder; provided,
however, that no approval by Continuing Directors
shall satisfy the requirements of this Subparagraph
4(b) unless at the time of such approval there are at
least three Continuing Directors.
(c) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder and
any of its Affiliates shall not have received the
benefit, directly or indirectly (except proportionately
solely in such Interested Shareholder's or Affiliates's
capacity as a Shareholder of the Corporation) of any
loans, advances, guarantees, pledges, or other
financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in
anticipation of or in connection with such Business
Combination or otherwise.
(d) A proxy or information statement describing the
proposed Business Combination and complying with the
Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules, or regulations)
shall be mailed to all Shareholders of the Corporation
at least thirty (30) days prior to the consummation of
such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant
to such Act or subsequent provisions). Such proxy
statement must contain the recommendations, if any, of
the Continuing Directors, and of any investment banking
firm selected by a majority of the Continuing
Directors, as to the fairness of the Business
Combination from the point of view of the Stockholders.
(e) Such Interested Shareholders shall have provided the
Corporation with such information as shall have been
requested as pursuant to Section 5 of this Article IX
within the time period set forth therein.
Section 3. Definitions. For the purposes of this Article IX:
a. A "person" shall include an individual, a group acting in
concert, a corporation, a partnership, an association, a joint
venture, a pool, a joint stock company, a trust, an
unincorporated organization or similar company, a syndicate or
any other group formed for the purpose of acquiring, holding or
disposing of securities.
b. "Interested Shareholder" means any, person (other than the
Corporation or any Subsidiary) who or which:
1. Is the beneficial owner (as hereinafter defined),directly or
indirectly, of ten percent or more of the voting power of
the outstanding Voting Stock; or
22
2. Is an Affiliate or an Associate of the Corporation and at
any time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of ten percent or more of the voting power of
the then-outstanding Voting Stock; or
3. Is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two year
period immediately prior to the date in question
beneficially owned by any 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, as amended.
c. A person shall be a "Beneficial Owner" of, or shall "Beneficially
Own," any Voting Stock:
1. Which such person or any of its affiliates or Associates (as
hereinafter defined) beneficially owns, directly or
indirectly within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as in effect on the
Corporation's date of incorporation; or
2. Which such person or any of its Affiliates or Associates has
(i) 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 (ii) the right to vote pursuant to
any agreement, arrangement or understanding (but neither
such person nor any such Affiliate or Associate shall be
deemed to be the beneficial owner of any shares of Voting
Stock solely by reason of revocable proxy granted for a
particular meeting of Shareholders, pursuant to a public
solicitation of proxies for such meeting, and with respect
to which shares neither such person nor any such Affiliate
or Associate is otherwise deemed the beneficial owner); or
3. Which are beneficially owned, directly or indirectly, within
the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934, as in effect on the Corporation's date of
incorporation, 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 (other than solely by reason of a revocable
proxy as described in subparagraph 2. of this paragraph c.
or disposing of any shares of Voting Stock; provided,
however, that in the case of any employee stock ownership or
similar plan of the Corporation or of any Subsidiary in
which the beneficiaries thereof possess the right to vote
any shares of Voting Stock held by such plan, no such plan
or any trustee with respect
23
thereto (nor any Affiliate of such trustee), solely by
reason of such capacity of such trustee, shall be deemed,
for any purpose hereof, to beneficially own any shares of
voting stock held under any such plan.
d. For the purposes of determining whether a person is an Interested
Stockholder pursuant to subparagraph b. of this Section 3, the
number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of subparagraph
c. of this Section 3 but shall not include any other unissued
shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
e. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on the Corporation's date of incorporation.
f. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in Subparagraph b
of this Section 3, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security
is owned, directly or indirectly, by the Corporation.
g. "Continuing Director" for purposes of this Article IX means any
member of the Board of Directors of the Corporation who is
unaffiliated with the Interested Shareholder and was a member of
the Board prior to the time that the Interested Shareholder
became an Interested Shareholder, and any director who is
thereafter chosen to fill any vacancy on the Board of Directors
or who is elected and who, in either event, is unaffiliated with
the Interested Shareholder and in connection with his or her
initial assumption of office is recommended for appointment or
election by a majority of Continuing Directors then on the Board.
h. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite
Tape for New York Stock Exchange-Listed Stocks, or, if such stock
is not quoted on the Composite Tape, on the New York Stock
Exchange, or if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934, as amended, on which such stock
is listed, or, if such stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in
question of a share of such stock as determined by the Board
24
in accordance with Section 4 of this Article IX, in each case
with respect to any class of stock, appropriately adjusted for
any dividend or distribution in shares of such stock or any
combination or reclassification of outstanding shares of such
stock into a smaller number of shares of such stock; and (ii) in
case of property other than cash or stock, the fair market value
of such property on the date in question as determined by the
Board in accordance with Section 4 of this Article IX.
i. Reference to the "highest per share price" shall in each case
with respect to any class of stock reflect on appropriate
adjustment for any dividend or distribution in shares of such
stock or any stock split or reclassification of outstanding
shares of such stock into a greater number of shares of such
stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such
stock.
j. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be
received" as used in subparagraphs b.2. and b.3. of Section 2 of
this Article IX shall include the shares of Common stock and/or
the shares of any other class (or series) of outstanding capital
stock retained by the holders of such shares.
Section 4. Power of Board of Directors. A majority of the total number
of Directors of the Corporation, but only if a majority of such Directors shall
then consist of Continuing Directors or, if a majority of the total number of
Directors shall not then consist of Continuing Directors, a majority of the then
Continuing Directors, shall have the power and duty to determine, on the basis
of information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article IX, including, without limitation, (a)
whether a person is an Interested Shareholder, (b) the number of shares of
Voting Stock beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether the applicable conditions set
forth in subparagraph b. of Section 2 have been met with respect to any Business
Combination, (e) the Fair Market Value of stock or other property in accordance
with subparagraph h. of Section 3 of this Article IX, and (f) whether the assets
which are the subject of any Business Combination referred to in subparagraph b.
of Section 1
25
have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
referred to in subparagraph c. of Section 1 has, an aggregate Fair Market Value
equaling or exceeding 25% of the combined assets of the Corporation and its
Subsidiaries.
Section 5. Requests for Information. A majority of the total number of
Directors of the Corporation, but only if a majority of such Directors shall
then consist of Continuing Directors or, if a majority of the total number of
Directors shall not then consist of Continuing Directors, a majority of the then
Continuing Directors, shall have the right to demand that any person who it is
reasonably believed is an Interested Shareholder (or holds of record shares of
Voting Stock Beneficially Owned by any Interested Shareholder) supply the
Corporation with complete information as to (a) the record owner(s) of all
shares Beneficially Owned by such person who it is reasonably believed is an
Interested Shareholder, (b) the number of, and class or series of, shares
Beneficially Owned by such person who it is reasonably believed is an Interested
Shareholder and held of record by each such record owner and the number(s) of
the stock certificate(s) evidencing such shares, and (c) any other factual
matter relating to the applicability or effect of this Article IX, as may be
reasonably requested of such person, and such person shall furnish such
information within 10 days after receipt of such demand.
Section 6. No Effect of Fiduciary Obligations. Nothing contained in
this Article IX shall be construed to relieve any Interested Shareholder from
any fiduciary obligation imposed by law.
Section 7. Amendment of this Article. Notwithstanding any other
provisions of these Articles of Incorporation or the By-Laws of the Corporation
to the contrary and notwithstanding that a lesser vote or no vote may be
specified by law, but in addition to any affirmative vote of
26
the holders of any particular class (or series) of the Corporation's capital
stock required by law or any Preferred Stock Designation, the affirmative vote
of the holders of at least 80% of the voting power of all of the
then-outstanding shares of Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal this Article IX.
ARTICLE X
Indemnification
Section 1. General Provisions. The Corporation shall, to the fullest
extent to which it is empowered to do so by the Act, or any other applicable
laws, as from time to time in effect, indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, by reason of the fact that he is
or was a Director, Officer, employee or agent of the Corporation, or who, while
serving as such Director, Officer, employee or agent of the Corporation, is or
was serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, whether for profit or not,
against expenses (including attorneys' fees), judgments, settlements, penalties
and fines (including excise taxes assessed with respect to employee benefit
plans) actually or reasonably incurred by him in accordance with such action,
suit or proceeding, if he acted in good faith and in a manner he reasonably
believed, in the case of conduct in his official capacity, was in the best
interest of the Corporation, and in all other cases, was not opposed to the best
interests of the Corporation, and with respect to any criminal action or
proceeding, he either had reasonable
27
cause to believe his conduct was lawful or no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not meet the prescribed standard of conduct.
Section 2. Indemnification Authorized. To the extent that a Director,
Officer, employee or agent of the Corporation has been successful, on the merits
or otherwise, in the defense of any action, suit or proceeding referred to in
Section 1 of this Article, or in the defense of any claim, issue or matter
therein, the Corporation shall indemnify such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. Any other indemnification under Section 1 of this Article (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case, upon a determination that indemnification of the Director,
Officer, employee or agent is permissible in the circumstances because he has
met the applicable standard of conduct. Such determination shall be made (a) by
the Board of Directors by a majority vote of a quorum consisting of Directors
who were not at the time parties to such action, suit or proceeding; or (b) if a
quorum cannot be obtained under subdivision (a), by a majority vote of a
committee duly designated by the Board of Directors (in which designation
Directors who are parties may participate), consisting solely of two or more
Directors not at the time parties to such action, suit or proceeding; or (c) by
special legal counsel: (i) selected by the Board of Directors or its committee
in the manner prescribed in subdivision (a) or (b), or (ii) if a quorum of the
Board of Directors cannot be obtained under subdivision (a) and a committee
cannot be designated under subdivision (b), selected by a majority vote of the
full Board of Directors (in which selection Directors who are
28
parties may participate); or (d) by Shareholders, but shares owned by or voted
under the control of Directors who are at the time parties to such action, suit
or proceeding may not be voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection c.
to select counsel.
Section 3. Definition of Good Faith. For purposes of any determination
under Section 1 of this Article X, a person shall be deemed to have acted in
good faith and to have otherwise met the applicable standard of conduct set
forth in Section 1 of this Article X if his action is based on information,
opinions, reports, or statements, including financial statements and other
financial data, if prepared or presented by (a) one or more Officers or
employees of the Corporation or other enterprise whom he reasonably believes to
be reliable and competent in the matters presented; (b) legal counsel, public
accountants, appraisers or other persons as to matters he reasonably believes
are within the person's professional or expert competence; or (c) a committee of
the Board of Directors of the Corporation or another enterprise of which the
person is not a member if he reasonably believes the committee merits
confidence. The term "another enterprise" as used in this Section 3 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee or agent.
The provisions of this Section 3 shall not be deemed to be exclusive or to
29
limit in any way the circumstances in which a person may be deemed to have met
the applicable standards of conduct set forth in Section 1 of this Article X.
Section 4. Advancement of Expenses. Expenses incurred in connection
with any civil or criminal action, suit or proceeding may be paid for or
reimbursed by the Corporation in advance of the final disposition of such
action, suit or proceeding, as authorized in the specific case in the same
manner described in Section 2 of this Article X, upon receipt of a written
affirmation of the Director, Officer, employee or agent's good faith belief that
he has met the standard of conduct described in Section 1 of this Article X and
upon receipt of a written undertaking on behalf of the Director, Officer,
employee or agent to repay such amount if it shall ultimately be determined that
he did not meet the standard of conduct set forth in this Article X, and a
determination is made that the facts then known to those making the
determination would not preclude indemnification under this Article X.
Section 5. Non-Exclusivity. The indemnification provided by this
Article X shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under these Articles of Incorporation,
the Corporation's By-Laws, any resolution of the Board of Directors or
Shareholders, any other authorization, whenever adopted, after notice, by a
majority vote of all Voting Stock then outstanding, or any contract, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
Director, Officer, employee or agent, and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 6. Vestment of Rights. The right of any individual to
indemnification under this Article X shall vest at the time of occurrence or
performance of any event, act or omission
30
giving rise to any action, suit or proceeding of the nature referred to in
Section 1 of this Article X and, once vested, shall not later be impaired as a
result of any amendment, repeal, alteration or other modification of any or all
of these provisions. Notwithstanding the foregoing, the indemnification afforded
under this Article X shall be applicable to all alleged prior acts or omissions
of any individual seeking indemnification hereunder, regardless of the fact that
such alleged acts or omissions may have occurred prior to the adoption of this
Article X. To the extent such prior acts or omissions cannot be deemed to be
covered by this Article X, the right of any individual to indemnification shall
be governed by the indemnification provisions in effect at the time of such
prior acts or omissions.
Section 7. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, Officer, employee or
agent of the Corporation, or who is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual's status as a
Director, Officer, employee or agent, whether or not the Corporation would have
power to indemnify the individual against the same liability under this Article
X.
Section 8. Other Definitions. For purposes of this Article X,
references to the "Corporation" shall include any domestic or foreign
predecessor entity of the Corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
31
For purposes of this Article X, serving an employee benefit plan at the
request of the Corporation shall include any service as a Director, Officer,
employee or agent of the Corporation which imposes duties on, or involves
services by such Director, Officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries. A person who acted in
good faith and in a manner he reasonably believed to be in the best interests of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interest of the Corporation"
referred to in this Article X.
For purposes of this Article X, "party" includes any individual who is
or was a plaintiff, defendant or respondent in any action, suit or proceeding.
For purposes of this Article X, "official capacity," when used with
respect to a Director, shall mean the office of director of the Corporation; and
when used with respect to an individual other than a Director, shall mean the
office in the Corporation held by the Officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the Corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not, except as set forth in Section 1 of
this Article.
Section 9. Business Expense. Any payments made to any indemnified party
under this Article X under any other right of indemnification shall be deemed to
be an ordinary and necessary business expense of the Corporation, and payment
thereof shall not subject any person responsible for the payment, or the Board
of Directors, to any action for corporate waste or to any similar action.
32
Section 10. Amendment or Repeal of this Article. Notwithstanding
anything contained in the Articles of Incorporation or the By-Laws of the
Corporation to the contrary, and notwithstanding that a lesser percentage or no
vote may be specified by law, but in addition to any affirmative vote of the
holders of any particular class or series of capital stock of the Corporation
required by law or any Preferred Stock designation, the affirmative vote of the
holders of at least 80% of the voting power of all of the then outstanding
shares of Voting Stock, voting together as a single class, shall be required to
alter, amend, change or repeal this Article.
ARTICLE XI
Incorporator
The name and address of the incorporator of the corporation is as
follows:
Montgomery Savings, a Federal Association
119 East Main Street
Crawfordsville, Indiana 47933
33
I, THE UNDERSIGNED, being the duly authorized Chairman of the Board of
Directors and Chief Executive Officer of Montgomery Savings, A Federal
Association, the sole incorporator, for the purpose of forming a corporation
pursuant to the Act do make these Articles of Incorporation, hereby affirming
under the penalties of perjury that this is my act and deed on behalf of
Montgomery Savings, A Federal Association and that the facts herein stated are
true and accordingly have hereunto set my hand this _______ day of
_______________ 1997.
MONTGOMERY SAVINGS, A FEDERAL
ASSOCIATION
By: _____________________________________
Name: Earl F. Elliott
Title: Chairman of the Board of Directors
and Chief Executive Officer
34