EXHIBIT 3.1
SECOND AMENDED AND RESTATED
ARTICLES OF
INTERCOUNTY BANCSHARES, INC.
As Amended Through September 23, 1998
FIRST: The name of the corporation is InterCounty Bancshares, Inc. (the
"Corporation").
SECOND: The place in Ohio where the principal office of the Corporation is
to be located is in the City of Wilmington, County of Clinton.
THIRD: The purpose for which the Corporation is formed is to engage in any
lawful act or activity for which corporations may be formed under Sections
1701.01 to 1701.98 of the Ohio Revised Code.
FOURTH:
Section 4.01. The total number of authorized shares of the Corporation is
six million one hundred thousand (6,100,000) shares of which:
(a) Six million (6,000,000), without par value, shall be a
class of common shares designated "Common Stock."
(b) Fifty thousand (50,000), without par value, shall be of
a class designated "Class A Preferred Shares."
(c) Fifty thousand (50,000), without par value, shall be of
a class designated "Class B Preferred Shares."
Section 4.02. The directors of the Corporation are authorized to provide for
the issuance from time to time in one or more series of any
number of authorized and unissued shares of Class A Preferred
Shares and Class B Preferred Shares. The Directors of the
Corporation are further authorized, subject to limitations
prescribed by law and by the provisions of this Article Fourth,
to adopt amendments to the Articles in respect of any unissued
or treasury shares of the Class A Preferred Shares and the
Class B Preferred Shares to fix or change the number of shares
to be included in each such series, and to fix the designation,
relative rights, preferences, qualifications and limitations of
the shares of each such series. Subject to limitations
prescribed by law, the authority of the Directors with respect
to each series shall include, but not be limited to, a
determination of the following:
A. The number of shares constituting that series and the
distinctive designation of that series;
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B. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from what date
or dates, and whether they shall be payable in preference
to, or in another relation to, the dividends payable on any
other class or classes or series of shares;
C. Whether that series shall have conversion or exchange
privileges and, if so, the terms and conditions of such
conversion or exchange, including provision for adjustment
of the conversion or exchange rate in such events as the
Board of Directors shall determine;
D. Whether the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption,
including the manner of selecting shares for redemption if
less than all shares are to be redeemed, the date or dates
upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which
amount may vary under different conditions and at different
redemption dates;
E. Whether that series shall be entitled to the benefit of a
purchase, retirement or sinking fund, and, if so, the
extent to and manner in which such purchase, retirement or
sinking fund shall be applied to the purchase or redemption
of the shares of such series for retirement or for other
corporate purposes and the terms and provisions relative to
the operation of such fund or funds;
F. The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of
indebtedness of the Corporation or of any subsidiary, upon
the issue of any additional shares (including additional
shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by
the Corporation or any subsidiary of any outstanding shares
of the Corporation;
G. The right of the shares of that series in the event of any
voluntary or involuntary dissolution or winding up of the
Corporation and whether such rights shall be in preference
to, or in another relation to, the comparable rights of any
other class or classes or series of shares; and
H. Such other rights, preferences and limitations as shall not
be inconsistent with this Article Fourth.
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Section 4.03. Each share of Common Stock shall entitle the holder thereof to
one (1) vote for the election of directors and for all other
purposes. Each Class A Preferred Share shall entitle the
holder thereof to no votes for the election of directors or for
any other purposes except as otherwise required by law. Each
Class B Preferred Share shall entitle the holder thereof to ten
(10) votes for the election of directors and for all other
purposes. Except as specifically required by law or these
articles, all shares of the Corporation shall be voted together
as a single class.
FIFTH: The directors of the Corporation shall have the power to cause the
Corporation from time to time and at any time to purchase, hold, sell,
transfer or otherwise deal with (A) shares of any class or series issued by
it; (B) any security or other obligation of the Corporation which may confer
upon the holder thereof the right to convert the same into shares of any class
or series authorized by the Articles of the Corporation; and (C) any security
or other obligation which may confer upon the holder thereof the right to
purchase shares of any class or series authorized by the Articles of the
Corporation. The Corporation shall have the right to repurchase, if and when
any shareholder desires to sell, or on the happening of any event is required
to sell, shares of any class or series issued by the Corporation. The
authority granted in this Article Fifth of these articles shall not limit the
plenary authority of the directors to purchase, hold, sell, transfer or
otherwise deal with shares of any class or series, securities, or other
obligations issued by the Corporation or authorized by its Articles.
SIXTH: No shareholder of the Corporation shall have, as a matter of right,
the preemptive right to purchase or subscribe for shares of any class, now or
hereafter authorized, or to purchase or subscribe for securities or other
obligations convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for or purchase
any such shares.
SEVENTH: Shareholders shall not have the right to vote cumulatively in the
election of directors.
EIGHTH:
Section 8.01. The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors consisting of not less than
seven (7) nor more than eleven (11) directors, the exact number of directors
to be determined from time to time by a resolution adopted by the affirmative
vote of a majority of the entire Board of Directors in office or by the
shareholders. The directors shall be divided into two (2) classes consisting
of at least three (3) directors each. The total number of directors
constituting the entire Board of Directors shall be apportioned among the
classes as nearly equally as possible. The election of each class of
directors shall be a separate election.
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Section 8.02. At the meeting of shareholders at which these Second Amended
and Restated Articles shall be adopted, three (3) directors shall be elected
for a one-year term and three (3) directors shall be elected for a two-year
term. At each succeeding annual meeting of shareholders beginning in 1990,
successors to the class of directors whose term expires that year shall be
elected for a two-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class at no less than three, as nearly equal
as possible, and any additional director of any class elected to fill a
vacancy resulting from an increase in such class shall hold office for a term
that shall coincide with the remaining term of that class, but in no case
shall a decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for `the year
in which his term expires and until his successor shall be elected and shall
qualify, subject, however, to his prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board of
Directors that results from an increase in the number of directors, and any
other vacancy occurring in the Board of Directors, may be filled by a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director. Any director elected to fill a vacancy not resulting from
an increase in the number of directors shall have the same remaining term as
that of his predecessor.
Section 8.03. All the directors, or all the directors of a particular class,
or any individual director, may be removed from office by the shareholders,
with or without assigning any cause, only by the affirmative vote of the
holders of eighty percent (80%) of the voting power of the Corporation
entitling them to elect directors, or an individual director, in place of
those to be removed. In case of any such removal, a new director may be
elected at the same meeting for the unexpired term of each director removed.
Failure to elect a director to fill the unexpired term of any director removed
shall be deemed to create a vacancy in the Board. The directors may remove
any director only in the manner provided by law.
Section 8.04. A. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as
directors. Nominations of persons for election as
directors of the Corporation may be made at a meeting of
shareholders by or at the direction of the directors, by
any nominating committee or person appointed by the
directors or by any shareholder of the Corporation entitled
to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this
Article Eighth. Such nominations, other than those made by
or at the direction of the directors or by any nominating
committee or person appointed by the directors, shall be
made pursuant to timely notice in writing to the secretary
of the Corporation. To be timely, a shareholder's notice
shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less
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than sixty (60) days nor more than ninety (90) days prior
to the meeting; provided, however, that in the event that
less than thirty-five (35) days' notice or prior public
disclosure of the date of the meeting is given or made to
shareholders of an annual meeting held on a date other than
the date fixed by the Regulations, notice by the
shareholder to be timely must be so received not later than
the close of business on the seventh (7th) day following
the earlier of the day on which such notice of the date of
the meeting was mailed or such public disclosure was made.
Such shareholder's notice shall set forth (a) as to each
person who is not an incumbent director whom a shareholder
proposes to nominate for election as a director, (i) the
name, age, business address and residence address of such
person; (ii) the principal occupation or employment of such
person; (iii) the class and number of shares of the
Corporation which are beneficially owned by such person;
and (iv) any other information relating to such person that
is required to be disclosed in solicitations for proxies
for election of directors pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended ("Exchange
Act"); and (b) as to the shareholder giving the notice (i)
the name and record address of such shareholder and (ii)
the class and number of shares of the Corporation which are
beneficially owned by such shareholder. Such notice shall
be accompanied by the written consent of each proposed
nominee to serve as a director of the Corporation, if
elected. No person shall be eligible for election as a
director of the Corporation unless nominated in accordance
with the requirements set forth in this Article Eighth.
B. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was
not made in accordance with the provisions of this Article
Eighth; and, if he should so determine, the defective
nomination shall be disregarded.
NINTH: A director of this Corporation shall not be disqualified by his office
from dealing or contracting with the Corporation as a vendor, purchaser,
employee, agent or otherwise; nor shall any transaction or contract or act of
this Corporation be void or voidable or in any way affected or invalid by
reason of the fact that any director or any firm of which any director is a
shareholder or director is in any way interested in such transaction, contract
or act, provided that such director or such firm or such corporation that is
so interested shall be disclosed or shall be known to the Board of Directors
or such members thereof as shall be present at any meeting of the Board of
Directors at which action upon any such contract or transaction or act shall
be taken; nor shall any such director be accountable or responsible to the
Corporation for or in respect to any such transaction or contract or act of
this Corporation or for any gains or profits realized by him by reason of the
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fact that he or any firm of which he is a member or any corporation of which
he is a shareholder or director is so interested in such transaction or
contract or act; and any such director may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of the
Corporation which shall authorize, ratify or approve any such contract or
transaction or act, with like force and effect as if he or any firm of which
he is a member or any corporation of which he is a shareholder or director,
were not interested in such transaction or contract or act.
TENTH: Except as provided in these Articles or as otherwise required by law,
including without limitation Article Eleventh, notwithstanding any provision
of the Ohio Revised Code as now or hereafter in force requiring for any
purpose the vote, consent, waiver or release of the holders of shares of the
Corporation entitling them to exercise two-thirds or any other proportion of
the voting power of the Corporation or of any class or classes thereof, such
action may be taken by the vote, consent, waiver or release of the holders of
shares entitling them to exercise not less than a majority of the voting power
of the Corporation or of such class or classes.
ELEVENTH:
Section 11.01. Notwithstanding any affirmative vote required by law or in any
agreement with any national securities exchange or any other provision of
these Articles or the Regulations of the Corporation or otherwise:
(i) any merger or consolidation of the Corporation; or
(ii) any sale, exchange, transfer or other disposition of
all, or substantially all, of the assets, with or
without the goodwill, of the Corporation; or
(iii) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation; or
(iv) any proposal by the shareholders to fix or change the
number of directors of the Corporation; or
(v) any amendment of the Articles of the Corporation; or
(vi) any agreement, contract or other arrangement providing
for any one or more of the actions specified in Clauses
(i) to (v) of this Article Eleventh,
shall require the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of the Corporation, voting together as a single
class, present in person or re-presented by proxy and entitled to vote in
respect thereof, at an annual meeting or at any special meeting duly called;
provided, however, that if seventy-five percent (75%) of the directors
continuing in office recommend approval of any one or more of the actions
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specified in this Article Eleventh, such action or actions may be taken upon
approval by a majority of the voting power of the Corporation, voting together
as a single class, present in person or represented by proxy, and entitled to
vote in respect thereof, at an annual meeting or at any special meeting duly
called.
TWELFTH:
Section 12.01. Mandatory Indemnification. The Corporation shall indemnify
any officer or director of the Corporation 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 (including,
without limitation, any action threatened or instituted by or
in the right of the Corporation), by reason of the fact that
he is or was a director, officer, employee or agent of the
Corporation or any subsidiary of the Corporation, including
The National Bank and Trust Company, or is or was serving at
the request of the Corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or
foreign, nonprofit or for profit), partnership, joint venture,
trust or other enterprise, against expenses (including,
without limitation, attorneys' fees, filing fees, court
reporters' fees and transcript costs), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation,
and with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. A
person claiming indemnification under this Section 12.01 shall
be presumed, in respect of any act or omission giving rise to
such claim for indemnification, to have acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and with respect to
any criminal matter, to have had no reasonable cause to
believe his conduct was unlawful, and 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, rebut such presumption.
Section 12.02. Court-Approved Indemnification. Anything contained in the
Articles, the Regulations or elsewhere to the contrary
notwithstanding:
A. the Corporation shall not indemnify any officer or
director of the Corporation who was a party to any
completed action or suit instituted by or in the right
of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
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employee or agent of the Corporation or any subsidiary of
the Corporation, including The National Bank and Trust
Company, or is or was serving at the request of the
Corporation as a director, trustee, officer, employee or
agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture,
trust or other enterprise, in respect of any claim, issue
or matter asserted in such action or suit as to which he
shall have been adjudged to be liable for acting with
reckless disregard for the best interests of the
Corporation or misconduct (other than negligence) in the
performance of his duty to the Corporation unless and only
to the extent that the Court of Common Pleas of Clinton
County, Ohio or the court in which such action or suit was
brought shall determine upon application that, despite
such adjudication of liability, and in view of all the
circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas
or such other court shall deem proper; and
B. the Corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper
as contemplated by this Section 12.02.
Section 12.03. Indemnification for Expenses. Anything contained in the
Articles, the Regulations or elsewhere to the contrary
notwithstanding, to the extent that an officer or director of
the Corporations has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in Section 12.01, or in defense of any claim,
issue or matter therein, he shall be promptly indemnified by
the Corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs) actually and reasonably incurred by
him in connection therewith.
Section 12.04. Determination Required. Any indemnification required under
Section 12.01 and not precluded under Section 12.02 shall be
made by the Corporation only upon a determination that such
indemnification of the officer or director is proper in the
circumstances because he has met the applicable standard of
conduct set forth in Section 12.01. Such determination may
be made only (A) by a majority vote of a quorum consisting of
directors of the Corporation who were not and are not parties
to, or threatened with, any such action, suit or proceeding,
or (B) if such a quorum is not obtainable or if a majority of
a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Corporation,
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or any person to be indemnified, within the past five years,
or (C) by the shareholders, or (D) by the Court of Common
Pleas of Clinton County, Ohio or (if the Corporation is a
party thereto) the court in which such action, suit or
proceeding was brought, if any; any such determination may be
made by a court under division (D) of this Section 12.04 at
any time, including, without limitation, any time before,
during or after the time when any such determination may be
requested of, be under consideration by or have been denied or
disregarded by the disinterested directors under division (A)
or by independent legal counsel under division (B) or by the
shareholders under division (C) of this Section 12.04; and no
failure for any reason to make any such determination, and no
decision for any reason to deny any such determination, by the
disinterested directors under division (A) or by independent
legal counsel under division (B) or by shareholders under
division (C) of this Section 12.04 shall be evidence in
rebuttal of the presumption recited in Section 12.01. Any
determination made by the disinterested directors under
division (A) or by independent legal counsel under division
(B)of this Section 12.04 to make indemnification in respect of
any claim, issue or matter asserted in an action or suit
threatened or brought by or in the right of the Corporation
shall be promptly communicated to the person who threatened or
brought such action or suit, and within ten (10) days after
receipt of such notification such person shall have the right
to petition the Court of Common Pleas of Clinton County, Ohio
or the court in which such action or suit was brought, if any,
to review the reasonableness of such determination.
Section 12.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs) incurred in defending any action,
suit or proceeding referred to in Section 12.01 shall be paid
by the Corporation in advance of the final disposition of such
action, suit or proceeding to or on behalf of the officer or
director promptly as such expenses are incurred by him, but
only if such officer or director shall first agree, in
writing, to repay all amounts so paid in respect of any claim,
issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been
successful on the merits or otherwise:
A. if it shall ultimately be determined as provided in
Section 12.04 that he is not entitled to be indemnified by
the Corporation as provided under Section 12.01; or
B. if, in respect of any claim, issue or other matter
asserted by or in the right of the Corporation in such
action or suit, he shall have been adjudged to be liable
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for acting with reckless disregard for the best interests
of the Corporation or misconduct (other than negligence)
in the performance of his duty to the Corporation, unless
and only to the extent that the Court of Common Pleas of
Clinton County, Ohio or the court in which such action or
suit was brought shall determine upon application that,
despite such adjudication of liability, and in view of all
the circumstances, he is fairly and reasonably entitled to
all or part of such indemnification.
Section 12.06. Article Twelfth Not Exclusive. The indemnification provided
by this Article Twelfth shall not be exclusive of, and shall
be in addition to, any other rights to which any person
seeking indemnification may be entitled under the Articles or
the Regulations or any agreement, vote of shareholders or
disinterested directors, or otherwise, 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 an officer or director of the Corporation
and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 12.07. Insurance. The Corporation may purchase and maintain
insurance or furnish similar protection, including but not
limited to trust funds, letters of credit, or self-insurance,
on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or any subsidiary of the
Corporation, including The National Bank and Trust Company, or
is or was serving at the request of the Corporation as a
director, trustee, officer, employee or agent of another
Corporation (domestic or foreign, nonprofit or for profit),
partnership joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether
or not the Corporation would have the obligation or the power
to indemnify him against such liability under the provisions
of this Article Twelfth. Insurance may be purchased from or
maintained with a person in which the Corporation has a
financial interest.
Section 12.08. Certain Definitions. For purposes of this Article Twelfth,
and as examples and not by way of limitation:
A. A person claiming indemnification under this Article
Twelfth shall be deemed to have been successful on the
merits or otherwise in defense of any action, suit or
proceeding referred to in Section 12.01, or in defense of
any claim, issue or other matter therein, if such action,
suit or proceeding shall be terminated as to such person,
with or without prejudice, without the entry of a judgment
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or order against him, without a conviction of him, without
the imposition of a fine upon him and without his payment
or agreement to pay any amount in settlement thereof
(whether or not any such termination is based upon a
judicial or other determination of the lack of merit of
the claims made against him or otherwise results in a
vindication of him); and
B. References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any
excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving 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;
and 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 interests of the Corporation" within the meaning
of that term as used in this Article Twelfth.
Section 12.09. Venue. Any action, suit or proceeding to determine a claim
for indemnification under this Article Twelfth may be
maintained by the person claiming such indemnification, or by
the Corporation, in the Court of Common Pleas of Clinton
County, Ohio. The Corporation and (by claiming such
indemnification) each such person consent to the exercise of
jurisdiction over its or his person by the Court of Common
Pleas of Clinton County, Ohio in any such action, suit or
proceeding.
THIRTEENTH: These Second Amended and Restated Articles supersede and take the
place of the existing articles of InterCounty Bancshares, Inc.
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