AMENDED AND RESTATED ARTICLES
OF INCORPORATION
OF
FC BANC CORP.
FIRST: The name of the corporation shall be FC Banc Corp.
SECOND: The place in Ohio where the principal office is to be located is the
City of Bucyrus, Crawford County.
THIRD: The purpose or purposes for which it is formed are:
(a) To be a bank holding company under the Bank Holding Company
Act of 1956.
(b) Generally, consistent with the provisions of sect;1701.04(A)
(3) of the Ohio Revised Code, to engage in any lawful act or
activity for which corporations may be formed under sect;
sect;1701.01-1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The maximum number of shares of all classes which the corporation is
authorized to have outstanding is 1,000,000 common shares, no par
value per share.
(a) No holder of any shares of any class of the corporation shall
be entitled to the preemptive rights to subscribe for,
purchase, or receive any part of any new or additional
shares of any class, whether now or hereafter authorized, or
any securities exchangeable for or convertible into such
shares, or any warrants or other instruments evidencing
rights or options to subscribe for, purchase or otherwise
acquire such shares.
(b) The corporation shall not purchase any of the corporation's
voting common shares from any shareholder, or shareholders
acting as a group, who individually or collectively hold(s)
one percent (1%) or more of the corporation's outstanding
common shares, not including any treasury shares
(individually or collectively referred to in this Article
Fourth as the "One Percent Holder(s)") at a price higher than
the then current fair market value of the corporation's
voting common shares, or on terms more favorable, when
considered as a whole, than those otherwise available, unless
(a) the corporation makes an offer to all of its other
shareholders to purchase from each shareholder the same
percentage of that shareholder's voting common shares in the
corporation as the corporation intends to purchase from the
One Percent Holder(s), at the same price and on the same
terms as the One Percent Holder(s) will receive; or (b) the
holders of a majority of the corporation's outstanding voting
common shares entitled to vote approve of the corporation's
purchase of its voting common shares from the One Percent
Holder(s), at the intended price and upon the intended terms,
with the One Percent Holder(s) not voting on such approval
and the voting common shares in the corporation which is held
by the One Percent Holder(s) not counted as outstanding in
calculating the number of votes required for approval.
(c) No holder of shares of any class shall have the right to vote
cumulatively in the election of directors.
FIFTH: A. The affirmative vote of the holders of not less than 80% of
the outstanding shares of the corporation entitled to vote
shall be required, except as otherwise expressly provided in
this Article Fifth (A) or in Article Fifth (B) in order for
the corporation:
(I) to consolidate or merge with or into another
corporation;
(II) to cause a combination or majority share acquisition
involving the issuance of shares of the corporation;
(III) to sell, transfer, exchange or otherwise dispose of
all, or substantially all, its assets; or
(IV) to dissolve;
to the extent such actions require shareholder approval.
The vote of shareholders specified in this Article Fifth
(A) shall not apply to any action or transaction described in such
paragraph if two-thirds of the Board of Directors of the
corporation shall have approved the action or transaction; in the
event of a conflict between Article Fifth (A) and Article Fifth
(B), Article Fifth (B) applies.
B. The provisions of this Article Fifth (B) shall apply to all
"Business Combinations" (as hereafter defined).
I. The affirmative vote of the holders of not less than
eighty percent (80%) of the outstanding shares of
"Voting Stock" (as hereafter defined) of the
corporation and the affirmative vote of the holders
of not less than sixty-seven percent (67%) of the
outstanding shares of Voting Stock held by
shareholders other than a "Related Party" (as
hereafter defined) shall be required for the approval
or authorization of any Business Combination of the
corporation with any Related Party; provided,
however, that the eighty percent (80%) and the sixty-
seven percent (67%) voting requirements shall not
apply if either of the following two exceptions are
applicable:
a. The "Continuing Directors" of the corporation
(as hereafter defined) by a majority vote
(i) have expressly approved in advance the
acquisition of outstanding shares of Voting
Stock of the corporation that caused the
Related Party to become a Related Party; or
(ii) have approved the Business Combination
prior to the Related Party involved in the
Business Combination having become a Related
Party; or
b. The cash or fair market value of the property,
securities or other consideration to be
received per share by shareholders of the
corporation in the Business Combination is
not less than the highest per share price
(with appropriate adjustments for recapital-
izations and for stock splits, stock dividends
and like distributions), paid by the Related
person in acquiring any of its holdings in the
appropriation's Common Stock. For purposes of
this Article Fifth (B), the term "other
consideration to be received" shall include,
without limitation, the Common Stock of the
corporation retained by its existing
shareholders in the event of any Business
Combination in which the corporation is the
surviving corporation.
II. For purposes of this Article Fifth (B), the following
terms shall have the following definitions:
a. The term "Business Combination" shall mean (i)
any merger or consolidation of the
corporation or a subsidiary with or into a
Related Party, (ii) any sale, lease, exchange,
transfer or other disposition, including
without limitation a mortgage or any other
security device, of all or any "Substantial
Part" (as hereafter defined) of the assets
either of the corporation (including without
limitation any voting securities of a
subsidiary) or of a subsidiary, to a Related
Party, (iii) any merger or consolidation of
a Related Party with or into the corporation
or a subsidiary of the corporation, (iv) any
sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of
the assets of a Related person to the
corporation or a subsidiary of the
corporation, (v) the issuance of any
securities of the corporation or a subsidiary
of the corporation to a Related Party, (vi)
any recapitalization that would have the
effect of increasing the voting power of a
Related Party, and (vii) any agreement,
contract or other arrangement providing for
any of the transactions described in this
definition of Business Combination.
b. The term "Related Party" shall mean and
include any individual, corporation, partner-
ship or other person or entity which, together
with its "Affiliates" and "Associates" (as
defined at Rule 12b-2 under the Securities
Exchange Act of 1934), "Beneficially Owns"
(as defined at Rule 13d-3 under the Securities
Exchange Act of 1934) in the aggregate twenty
percent (20%) or more of the outstanding
Voting Stock of the corporation, and any
Affiliate or Associate of any such individual,
corporation, partnership or other person or
entity. Without limitation, any shares of
Common Stock of the corporation that any
Related Party has the right to acquire
pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or
otherwise, shall be deemed beneficially owned
by the Related Party.
c. The term "Continuing Director" shall mean a
Director who was a member of the Board of
Directors of the corporation immediately prior
to the time that the Related Party involved
in a Business Combination became a Related
Party.
d. The term "Substantial Part" shall mean more
than thirty percent (30%) of the fair market
value of the total assets of the corporation,
as of the end of its most recent fiscal year
ending prior to the time of determination is
being made.
e. The term "Voting Stock" shall mean all
outstanding shares of capital stock of the
corporation or another corporation entitled to
vote generally in the election of directors
and each reference to a proportion of shares
of Voting Stock shall refer to such proportion
of the votes entitled to be cast by such
shares.
III. The provisions of this Article Fifth (B) may not be
repealed or amended in any respect unless the action
is approved by the affirmative vote of the holders of
not less than eighty percent (80%) of the outstanding
shares of Voting Stock of the corporation; provided,
however, that if there is a Related Party, such
action must also be approved by the affirmative vote
of holders of not less than sixty-seven percent (67%)
of the outstanding shares of Voting Stock held by
shareholders other than Related Parties. Further
provided, however, that this paragraph III shall not
apply to, and such eighty percent (80%) vote and
sixty-seven percent (67%) vote shall not be required
for any amendment, repeal or adoption recommended by
as majority of the Board of Directors if all of such
directors are Continuing Directors as defined in
paragraph II(c) of this Article Fifth (B).
SIXTH: The Board of Directors is hereby authorized to fix and determine, and
to vary, the amount of working capital of the corporation; to
determine whether any, and, if any, what part of the surplus, however
created or arising, shall be used or disposed of, or declared in
dividends, or paid to shareholders; and without action by the
shareholders, to use and apply such surplus, or any part thereof, or
such part of the stated capital of the corporation as is permitted
under the provisions of §1701.35 of the Ohio Revised Code, or
any statute of like tenor or effect which is hereinafter enacted, at
any time or from time to time, in the purchase or acquisition of
shares of any class, voting-trust certificates for shares, bonds,
debentures, notes, script, warrants, obligations, evidences of
indebtedness of the corporation, or other securities of the
corporation, to such extent or amount and in such manner and upon
such terms as the Board of Directors shall deem expedient.
SEVENTH: Every statute of the State of Ohio hereafter enacted, whereby the
rights or privileges of shareholders of a corporation organized under
the General Corporation Law of said state are increased, diminished,
or in any way affected, or whereby effect is given to any action
authorized, ratified, or approved by less than all the shareholders
of any such corporation, shall apply to the corporation and shall be
binding upon every shareholder thereof to the same extent as if such
statute had been in force at the date of the filing of these Articles
of Incorporation.
EIGHTH: Each member of the Board of Directors shall have qualified as a
director of The Farmers Citizen Bank of Bucyrus. The Board of
Directors shall be divided into three(3) classes as nearly equal in
number as possible, with the initial term of office of Class I
directors expiring at the annual meeting of shareholders in 1993, of
Class II directors expiring at the annual meeting of shareholders
in 1994, and of Class III directors expiring at the annual meeting of
shareholders in 1995. At each annual meeting of shareholders,
directors chosen to succeed those whose terms then expire shall be
elected for a term of office expiring at the third succeeding annual
meeting of shareholders after their election. Directors may be
removed by the holders of a majority of the shares entitled to vote
at an election of directors only for cause.
NINTH: The shareholders of the corporation may adopt, amend or repeal the
Code of Regulations of the corporation only by the affirmative vote
of the holders of eighty percent (80%) of the outstanding common
shares of the corporation entitled to vote thereon; provided,
however, that if two-thirds (2/3) of the Board of Directors of the
corporation shall have approved such adoption, amendment or repeal,
the Code of Regulations may be adopted, amended or repealed by the
affirmative vote of a majority of the outstanding common shares
entitled to vote thereon.
TENTH: A director or officer of the corporation shall not be disqualified by
his office from dealing or contracting with the corporation as a
vendor, purchaser, employee, agent, or otherwise. No transaction or
contract or act of the corporation shall be void or voidable or in
any way affected or invalidated by reason of the fact that any
director or officer, or any firm of which any director or officer is
a member, or any corporation of which any director or officer is a
shareholder, director, or trustee, or any trust of which any director
or officer is a trustee or beneficiary, is in any way interested in
such transaction or contract or act. No director or officer shall
be accountable or responsible to the corporation for or in respect to
any transaction or contract or act of the corporation or for any
gains or profits directly or indirectly realized by him by reason of
the fact that he or any firm of which he is a member or any
corporation of which he is a shareholder, director, or trustee, or
any trust of which he is a trustee or beneficiary, is interested in
said transaction, contract or act; provided the fact that such
director or officer or such firm or such corporation or such trust
is so interested shall have been disclosed or shall have been 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 such
contract or transaction or act shall have been taken. Any director
may be counted in determining the existence of a quorum at any
meeting of the Board of Directors which shall authorize or take
action in respect to any such contract or transaction or act, and may
vote thereat to authorize, ratify, or approve any such contract or
transaction or act, and any officer of the corporation may take any
action within the scope of his authority respecting 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, director, trustee, or any trust of which he is a trustee
or beneficiary, were not interested in such transaction or contract
or act. Without limiting or qualifying the foregoing, if in any
judicial or other inquiry, suit, cause, or proceeding, the question
of whether a director or officer of the corporation has acted in good
faith is material, then notwithstanding any statute or rule of law or
of equity to the contrary (if any there be), his good faith shall be
presumed, in the absence of proof to the contrary by clear and
convincing evidence.
ELEVENTH: (1) The corporation will indemnify or agree to 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, other than an action 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
is or was serving at the request of the corporation as a
director, trustee, officer, employee, or agent of another
corporation (including a subsidiary of this corporation),
domestic or foreign, nonprofit or for profit, partnership,
joint venture, trust, or other enterprise, against expenses,
including attorneys' fees, judgements, 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, had
no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by
judgement, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself
create a presumption that the person did not act in good
faith and in a manner which 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
reasonable cause to believe that his conduct was unlawful.
(2) The corporation will indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a
party to any threatened, pending, or completed action of
suit by or in the right of the corporation to procure a
judgement in its favor by reason of the fact that he is or
was a director, officer, employee, or agent or the
corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or
agent of another corporation (including a subsidiary of this
corporation), domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise
against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit 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, except that
no indemnification shall be made in respect of any claim,
issue, or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only
to the extent that the court of common pleas, or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court
shall deem proper.
(3) To the extent that a director, trustee, officer, employee, or
agent has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in
sections (1) and (2) of this article, or in defense of any
claim, issue, or matter therein, he shall be indemnified
against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection therewith.
(4) No indemnification under sections (1) and (2) of this
article, unless ordered by a court, shall be made by the
corporation if it is determined in the specific case that
indemnification of the director, trustee, officer, employee
or agent is not proper in the circumstances because he has
not met the applicable standard of conduct set forth in
sections (1) and (2) of this article. Such determination
shall be made (a) by a majority vote of a quorum consisting
of directors of the indemnifying 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 vote 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, or any person to be indemnified
within the past five years, or (c) by the shareholders, or
(d) by the court of common pleas or the court in which such
action, suit, or proceeding was brought. Any determination
made by the disinterested directors under section (4)(a) or
by independent legal counsel under section (4)(b) of this
article shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right
of the corporation under section (2) of this article, and
within ten days after receipt of such notification, such
person shall have the right to petition the court of common
pleas or the court in which such action or suit was brought
to review the reasonableness of such determination.
(5) Expenses, including attorneys' fees, incurred in defending
any action, suit, or proceeding referred to in sections (1)
and (2) of this article, shall be paid by the corporation in
advance of the final disposition of such action, suit, or
proceeding as authorized by the directors in the specific
case upon receipt of a written undertaking by or on behalf of
the director, trustee, officer, employee, or agent to repay
such amount, unless it shall ultimately be determined that
he is entitled to be indemnified by the corporation as
authorized in this article. If a majority vote of a quorum
of disinterested directors so directs by resolution, said
written undertaking need not be submitted to the corporation.
Such a determination that a written undertaking need not be
submitted to the corporation shall in no way affect the
entitlement of indemnification as authorized by this article.
(6) The indemnification provided by this article shall not be
deemed exclusive of any other rights of which those 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 a director, trustee, officer, employee,
or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
(7) 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 is or was serving at the request
of the corporation as a director, trustee, officer, employee,
or agent of another corporation (including a subsidiary of
this 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 power to
indemnify him against such liability under this section.
(8) As used in this section, references to "the corporation"
include all constituent corporations in a consolidation or
merger and the new or surviving corporation, so that any
person who is or was a director, officer, employee, or agent
of such a constituent corporation, or is or was serving at
the request of such constituent corporation as a director,
trustee, officer, employee or agent of another corporation
(including a subsidiary of this corporation), domestic or
foreign, nonprofit or for profit, partnership, joint venture,
trust, or other enterprise shall stand in the same position
under this article with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
(9) The forgoing provisions of this article do not apply to any
proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in such person's
capacity as such, even though such person may also be an
agent of this corporation. The corporation will indemnify
such named fiduciaries of its employee benefit plans against
all costs and expenses, judgements, fines, settlements or
other amounts actually and reasonably incurred by or imposed
upon said named fiduciary in connection with or arising out
of any claim, demand, action, suit or proceeding in which the
named fiduciary may be made a party by reason of being or
having been a named fiduciary, to the same extent it
indemnifies an agent of the corporation. To the extent that
the corporation does not have the direct legal power to
indemnify, the corporation will contract with the named
fiduciaries of its employee benefit plans to indemnify them
to the same extent as noted above. The corporation may
purchase and maintain insurance on behalf of such named
fiduciary covering any liability to the same extent that it
contracts to indemnify.
TWELFTH: Notwithstanding any provision of any statute of the State of Ohio,
now or hereafter in force, requiring for any purpose the vote of the
holders of shares entitling them to exercise two-thirds or any other
proportion of the voting power of the corporation or of any class or
classes of shares thereof, any action, unless otherwise expressly
required by statute or by these Amended and Restated Articles of
Incorporation, may be taken by the vote of the holders of shares
entitling them to exercise a majority of the voting power of the
corporation or of such class or classes.
THIRTEENTH: A. The corporation reserves the right to amend, alter,
change, or repeal any provision contained in these
Amended and Restated Articles of Incorporation, in the
manner now or hereafter prescribed by statute, and all
rights conferred upon shareholders herein are granted
subject to this reservation and subject to paragraph B.
B. The provisions set forth in these Amended and Restated
Articles may not be repealed or amended in any respect,
unless such action is approved by the affirmative vote
of the holders of not less than eighty percent (80%) of
the outstanding shares of the corporation entitled to
vote, except that such eighty percent (80%) requirement
shall not apply if two-thirds (2/3) of the Board of
Directors of the corporation shall have approved such
amendment or repeal.
C. All actions which are required to be or may be taken by
the shareholders of the corporation shall be taken at a
meeting of the shareholders, duly held and upon proper
notice of at least ten(10) days, may not be taken by
written consent without a meeting, and the power of
shareholders to consent in writing to the taking of any
action is specifically denied.
FOURTEENTH: These Amended and Restated Articles of Incorporation of the
corporation supersede the Amend Articles of Incorporation
existing on the effective date hereof.