Exhibit 3.1
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 (S)1701.04(A)(3) of the
Ohio Revised Code, to engage in any lawful act or activity for which
corporations may be formed under (S)(S)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 4,000,000 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) 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 recapitalizations 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, partnership 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 (S)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: 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.