EXHIBIT 3(i)
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CERTIFICATE OF INCORPORATION
OF
CLASSIC BANCSHARES, INC.
FIRST: The name of the Corporation is Classic Bancshares, Inc.
(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is one million eight
hundred thousand (2,800,000) consisting of:
1. One hundred thousand (100,000) shares of preferred stock, par
value one cent ($.01) per share (the "Preferred Stock"); and
2. One million seven hundred thousand (2,700,000) shares of
common stock, par value one cent ($.01) per share (the "Common
Stock").
B. The Board of Directors is hereby expressly authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware (such
certificate being hereinafter referred to as a "Preferred Stock
Designation"), to establish from time to time the number of shares to
be included in each such series, and to fix the designation, powers,
preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of
authorized shares of the 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 Common Stock, without a vote of the holders of the Preferred
Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the terms of any Preferred Stock Designation.
C.1. Notwithstanding any other provision of this Certificate of
Incorporation, in no event shall any record owner of any outstanding
Common Stock which is beneficially owned, directly or indirectly, by
a person who, as of any record date for the determination of
stockholders entitled to vote on any matter, beneficially owns in
excess of 10% of the then-outstanding shares of Common Stock (the
"Limit"), be entitled, or permitted to any vote in respect of
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the shares held in excess of the Limit. The number of votes which may
be cast by any record owner by virtue of the provisions hereof in
respect of Common Stock beneficially owned by such person owning
shares in excess of the Limit shall be a number equal to the total
number of votes which a single record owner of all Common Stock owned
by such person would be entitled to cast, multiplied by a fraction,
the numerator of which is the number of shares of such class or
series beneficially owned by such person and owned of record by such
record owner and the denominator of which is the total number of
shares of Common Stock beneficially owned by such person owning
shares in excess of the Limit.
C2. The following definitions shall apply to this Section C of this
Article FOURTH:
(a) An "affiliate" of a specified person shall mean a person that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control
with, the person specified.
(b) "Beneficial ownership" shall be determined pursuant to Rule
13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934 (or any successor rule or
statutory provision), or, if said Rule 13d-3 shall be
rescinded and there shall be no successor rule or statutory
provision thereto, pursuant to said Rule 13d-3 as in effect
on August 31, 1995, provided, however, that a person shall,
in any event, also be deemed the "beneficial owner" of any
Common Stock:
(1) which such person or any of its affiliates
beneficially owns, directly or indirectly; or
(2) which such person or any of its affiliates 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 (but shall not be deemed to be the
beneficial owner of any voting shares solely by
reason of an agreement, contract, or other
arrangement with this Corporation to effect any
transaction which is described in any one or more of
the clauses of Section A of Article EIGHTH) or upon
the exercise of conversion rights, exchange rights,
warrants, or options or otherwise, or (ii) sole or
shared voting or investment power with respect
thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall
not be deemed to be the beneficial owner of any
voting shares solely by reason of a revocable proxy
granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such
meeting, with respect to shares of which neither such
person nor any such affiliate is otherwise deemed the
beneficial owner); or
(3) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its affiliates acts as a
partnership, limited partnership, syndicate or other
group pursuant to any agreement,
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arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares
of capital stock of this Corporation;
and provided further, however, that (i) no director
or officer of this Corporation (or any affiliate of
any such director or officer) shall, solely by reason
of any or all of such directors or officers acting in
their capacities as such, be deemed, for any purposes
hereof, to beneficially own any Common Stock
beneficially owned by any other such director or
officer (or any affiliate thereof), and (ii) neither
any employee stock ownership or similar plan of this
Corporation or any subsidiary of this Corporation nor
any trustee with respect thereto (or any affiliate of
such trustee) shall, solely by reason of such
capacity of such trustee, be deemed, for any purposes
hereof, to beneficially own any Common Stock held
under any such plan. For purposes of computing the
percentage beneficial ownership of Common Stock of a
person, the outstanding Common Stock shall include
shares deemed owned by such person through
application of this subsection but shall not include
any other Common Stock which may be issuable by this
Corporation pursuant to any agreement, or upon
exercise of conversion rights, warrants or options,
or otherwise. For all other purposes, the outstanding
Common Stock shall include only Common Stock then
outstanding and shall not include any Common Stock
which may be issuable by this Corporation pursuant to
any agreement, or upon the exercise of conversion
rights, warrants or options, or otherwise.
(c) A "person" shall mean any individual, firm, corporation, or
other entity.
(d) The Board of Directors shall have the power to construe and
apply the provisions of this section and to make all
determinations necessary or desirable to implement such
provisions, including but not limited to matters with respect
to (1) the number of shares of Common Stock beneficially
owned by any person, (2) whether a person is an affiliate of
another, (3) whether a person has an agreement, arrangement,
or understanding with another as to the matters referred to
in the definition of beneficial ownership, (4) the
application of any other definition or operative provision of
this Section to the given facts, or (5) any other matter
relating to the applicability or effect of this Section.
C.3. The Board of Directors shall have the right to demand that any person
who is reasonably believed to beneficially own Common Stock in excess
of the Limit (or holds of record Common Stock beneficially owned by
any person in excess of the Limit) (a "Holder in Excess") supply the
Corporation with complete information as to (a) the record owner(s)
of all shares beneficially owned by such Holder in Excess, and (b)
any other factual matter relating to the applicability or effect of
this section as may reasonably be requested of such Holder in Excess.
The Board of Directors shall further have the right to receive from
any Holder in Excess reimbursement for all expenses incurred by the
Board in connection with its investigation of any matters relating to
the applicability or effect of this section on such Holder in Excess,
to the extent such investigation is deemed appropriate by the Board
of
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Directors as a result of the Holder in Excess refusing to supply the
Corporation with the information described in the previous sentence.
C.4. Except as otherwise provided by law or expressly provided in this
Section C, the presence, in person or by proxy, of the holders of
record of shares of capital stock of the Corporation entitling the
holders thereof to cast one-third of the votes (after giving effect,
if required, to the provisions of this Section) entitled to be cast
by the holders of shares of capital stock of the Corporation entitled
to vote shall constitute a quorum at all meetings of the
stockholders, and every reference in this Certificate of
Incorporation to a majority or other proportion of capital stock (or
the holders thereof) for purposes of determining any quorum
requirement or any requirement for stockholder consent or approval
shall be deemed to refer to such majority or other proportion of the
votes (or the holders thereof) then entitled to be cast in respect of
such capital stock.
C.5. Any constructions, applications, or determinations made by the Board
of Directors, pursuant to this Section in good faith and on the basis
of such information and assistance as was then reasonably available
for such purpose, shall be conclusive and binding upon the
Corporation and its stockholders.
C.6. In the event any provision (or portion thereof) of this Section C
shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions (or portions thereof) of this
Section shall remain in full force and effect, and shall be construed
as if such invalid, prohibited or unenforceable provision had been
stricken herefrom or otherwise rendered inapplicable, it being the
intent of this Corporation and its stockholders that each such
remaining provision (or portion thereof) of this Section C remain, to
the fullest extent permitted by law, applicable and enforceable as to
all stockholders, including stockholders owning an amount of stock
over the Limit, notwithstanding any such finding.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by Statute or by
this Certificate of Incorporation or the By-laws of the Corporation,
the directors are hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the
Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the By-laws so provide.
C. Subject to the rights of holders of any class or series of Preferred
Stock, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may
not be effected by any consent in writing by such stockholders.
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D. Subject to the rights of holders of any class or series of Preferred
Stock, special meetings of stockholders of the Corporation may be
called only by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies on the Board of
Directors (the "Whole Board").
E. Stockholders shall not be permitted to cumulate their votes for the
election of directors.
SIXTH:
A. The number of directors shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board. The directors, other than those who may
be elected by the holders of any class or series of Preferred Stock,
shall be divided into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class to
expire at the conclusion of the first annual meeting of stockholders,
the term of office of the second class to expire at the conclusion of
the annual meeting of stockholders one year thereafter and the term
of office of the third class to expire at the conclusion of the
annual meeting of stockholders two years thereafter, with each
director to hold office until his or her successor shall have been
duly elected and qualified. At each annual meeting of stockholders
following such 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 succeeding annual meeting of
stockholders after their election, with each director to hold office
until his or her successor shall have been duly elected and
qualified.
B. 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 may be filled
only by a majority vote of the directors then in office, though less
than a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires, and
until such director's successor shall have been duly elected and
qualified. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the
manner provided in the By-laws of the Corporation.
D. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any directors, 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 80% of the voting
power of all of the then-outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(after giving effect to the provisions of Article FOURTH of this
Certificate of Incorporation), voting together as a single class.
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SEVENTH: The Board of Directors is expressly empowered to adopt,
amend or repeal the By-laws of the Corporation. Any adoption, amendment or
repeal of the By-laws of the Corporation by the Board of Directors shall require
the approval of a majority of the Whole Board. The stockholders shall also have
power to adopt, amend or repeal the By-laws of the Corporation. In addition to
any vote of the holders of any class or series of stock of this Corporation
required by law or by this Certificate of Incorporation, the affirmative vote of
the holders of at least 80% 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 of Article FOURTH
hereof), voting together as a single class, shall be required to adopt, amend or
repeal any provisions of the By-laws of the Corporation.
EIGHTH:
A. In addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise expressly
provided in this Section:
1. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested
Stockholder (as hereinafter defined) or (b) any other
corporation (whether or not itself an Interested Stockholder)
which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested
Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to or with any Interested Stockholder, or any
Affiliate of any Interested Stockholder, of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereafter defined) equaling or exceeding 25% or
more of the combined assets of the Corporation and its
Subsidiaries; or
3. the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any
Interested Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate Fair
Market Value equaling 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
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of
any Interested Stockholder or any Affiliate of any Interested
Stockholder; or
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5. 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 an Interested Stockholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder (a "Disproportionate Transaction"); provided,
however, that no such transaction shall be deemed a
Disproportionate Transaction if the increase in the
proportionate ownership of the Interested Stockholder or
Affiliate as a result of such transaction is no greater than
the increase experienced by the other stockholders generally;
shall require the affirmative vote of the holders of at least 80% of
the voting power of the then-outstanding shares of stock of the
Corporation entitled to vote in the election of directors (the
"Voting Stock"), voting together as a single class. Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or by
any other provisions of this Certificate of Incorporation or any
Preferred Stock Designation or in any agreement with any national
securities exchange or quotation system or otherwise.
The term "Business Combination" as used in this Article EIGHTH shall
mean any transaction which is referred to in any one or more of
paragraphs 1 through 5 of Section A of this Article EIGHTH.
B. The provisions of Section A of this Article EIGHTH shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only the affirmative vote of the majority
of the outstanding shares of capital stock entitled to vote, or such
vote as is required by law or by this Certificate of Incorporation,
if, in the case of any Business Combination that does not involve any
cash or other consideration being received by the stockholders of the
Corporation solely in their capacity as stockholders of the
Corporation, the condition specified in the following paragraph 1 is
met or, in the case of any other Business Combination, all of the
conditions specified in either of the following paragraphs 1 and 2
are met:
1. The Business Combination shall have been approved by a
majority of the Disinterested Directors (as hereinafter
defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the
Business Combination of consideration other than cash
to be received per share by the holders of Common
Stock in such Business Combination shall at least be
equal to the higher of the following:
(1) (if applicable) the Highest Per Share Price,
including any brokerage commissions, transfer
taxes and soliciting dealers' fees, paid by
the Interested Stockholder or any of its
Affiliates for any shares of Common Stock
acquired by it (i) within the two-year period
immediately prior to the first public
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announcement of the proposal of the Business
Combination (the "Announcement Date"), or
(ii) in the transaction in which it became an
Interested Stockholder, whichever is higher.
(2) the Fair Market Value per share of Common
Stock on the Announcement Date or on the date
on which the Interested Stockholder became an
Interested Stockholder (such latter date is
referred to in this Article EIGHTH as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the
Business Combination of consideration other than cash
to be received per share by holders of shares of any
class of outstanding Voting Stock other than Common
Stock shall be at least equal to the highest of the
following (it being intended that the requirements of
this subparagraph (b) shall be required to be met
with respect to every such class of outstanding
Voting Stock, whether or not the Interested
Stockholder has previously acquired any shares of a
particular class of Voting Stock):
(1) (if applicable) the Highest Per Share Price
(as hereinafter defined), including any
brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the
Interested Stockholder for any shares of such
class of Voting Stock acquired by it (i)
within the two-year period immediately prior
to the Announcement Date, or (ii) in the
transaction in which it became an Interested
Stockholder, whichever is higher;
(2) (if applicable) the highest preferential
amount per share to which the holders of
shares of such class of Voting Stock are
entitled in the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation; and
(3) the Fair Market Value per share of such class
of Voting Stock on the Announcement Date or
on the Determination Date, whichever is
higher.
(c) The consideration to be received by holders of a
particular class of outstanding Voting Stock
(including Common Stock) shall be in cash or in the
same form as the Interested Stockholder has
previously paid for shares of such class of Voting
Stock. If the Interested Stockholder has paid for
shares of any class of Voting Stock with varying
forms of consideration, the form of consideration to
be received per share by holders of shares of such
class of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of
such class of Voting Stock previously acquired by the
Interested Stockholder. The price determined in
accordance with subparagraph B.2 of this Article
EIGHTH shall be subject to appropriate adjustment in
the event of any stock dividend, stock split,
combination of shares or similar event.
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(d) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation
of such Business Combination; (1) except as approved
by a majority of the Disinterested 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 stock
having preference over the Common Stock as to
dividends or liquidation; (2) there shall have been
(i) 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 Disinterested
Directors, and (ii) 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 Common Stock, unless
the failure to so increase such annual rate is
approved by a majority of the Disinterested
Directors; and (3) neither such Interested
Stockholder nor any of its Affiliates shall have
become the beneficial owner of any additional shares
of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming
an Interested Stockholder.
(e) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder
shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder),
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.
(f) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or
regulations) shall be mailed to stockholders of the
Corporation at least 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).
C. For the purposes of this Article EIGHTH:
1. 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.
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2. "Interested Stockholder" shall mean any Person (other than
the Corporation or any holding company or Subsidiary thereof)
who or which:
(a) is the beneficial owner, directly or indirectly, of
more than 10% of the voting power of the outstanding
Voting Stock; or
(b) is an Affiliate 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 10% or more of the voting power of
the then-outstanding Voting Stock; or
(c) 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
Stockholder, 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.
3. A Person shall be a "beneficial owner" of any Voting Stock:
(a) 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 August 31, 1995; or
(b) which such Person or any of its Affiliates or
Associates has (1) 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 (2) 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 a revocable proxy granted for a
particular meeting of stockholders, 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
(c) 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 August 31,
1995, by any other Person with which such Person or
any of its Affiliates or Associates has any
agreement, arrangement or understanding for the
purposes of acquiring, holding, voting (other than
solely by reason of a revocable proxy as described in
Subparagraph (b) of this Paragraph 3) or in disposing
of any shares of Voting Stock; and
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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 nor any trustee with
respect thereto (nor any Affiliate of such trustee),
solely by reason of such capacity of such trustee,
shall be deemed, for any purposes hereof, to
beneficially own any shares of Voting Stock held
under any such plan.
4. For the purpose of determining whether a Person is an
Interested Stockholder pursuant to Paragraph 2 of this
Section C, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through
application of Paragraph 3 of this Section C but shall not
include any other 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.
5. "Affiliate" and "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 August 31, 1995.
6. "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 Stockholder set forth in
Paragraph 2 of this Section C, 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.
7. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder
and was a member of the Board of Directors prior to the time
that the Interested Stockholder became an Interested
Stockholder, 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
Stockholder, and in connection with his or her initial
assumption of office is recommended for appointment or
election by a majority of Disinterested Directors then on the
Board of Directors.
8. "Fair Market Value" means: (a) in the case of stock, the
highest closing sales price of the stock during the 30-day
period immediately preceding the date in question of a share
of such stock of the National Association of Securities
Dealers Automated Quotations ("Nasdaq") System or any system
then in use, or, if such stock is admitted to trading on a
principal United States securities exchange registered under
the Securities Exchange Act of 1934, Fair Market Value shall
be the highest sale price reported during the 30-day period
preceding the date in question, 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 of Directors
in good faith, in each case with respect to any class of
stock, appropriately adjusted for any dividend or
distribution
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in shares of such stock or in combination or reclassification
of outstanding shares of such stock into a smaller number of
shares of such stock, and (b) in the 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 of Directors
in good faith.
9. Reference to "Highest Per Share Price" shall in each case
with respect to any class of stock reflect an 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.
10. 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 (a) and (b) of
Paragraph 2 of Section B of this Article EIGHTH shall include
the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of
such shares.
D. A majority of the Disinterested Directors of the Corporation shall
have the power and duty to determine for the purposes of this Article
EIGHTH, on the basis of information known to them after reasonable
inquiry, (a) whether a person is an Interested Stockholder; (b) the
number of shares of Voting Stock beneficially owned by any person;
(c) whether a person is an Affiliate or Associate of another; and (d)
whether the assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any
Business Combination has an aggregate Fair Market Value equaling or
exceeding 25% of the combined assets of the Corporation and its
Subsidiaries. A majority of the Disinterested Directors shall have
the further power to interpret all of the terms and provisions of
this Article EIGHTH.
E. Nothing contained in this Article EIGHTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
F. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of
the holders of any particular class or series of the Voting Stock
required by law, this Certificate of Incorporation 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 the
Voting Stock, voting together as a single class, shall be required to
alter, amend or repeal this Article EIGHTH.
NINTH: The Board of Directors of the Corporation, when evaluating any
offer of another Person (as defined in Article EIGHTH hereof) to (A) make a
tender or exchange offer for any equity security of the Corporation, (B) merge
or consolidate the Corporation with another corporation or entity or (C)
purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation, may, in connection with the exercise of its judgment
in determining what is in the best interest of the Corporation and its
stockholders, give due consideration to all
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relevant factors, including, without limitation, the social and economic effect
of acceptance of such offer on the Corporation's present and future customers
and employees and those of its Subsidiaries (as defined in Article EIGHTH
hereof); on the communities in which the Corporation and its Subsidiaries
operate or are located; on the ability of the Corporation to fulfill its
corporate objectives as a financial institution holding company and on the
ability of its subsidiary financial institution to fulfill the objectives of a
federally insured financial institution under applicable statutes and
regulations.
TENTH:
A. Except as set forth in Section B of this Article TENTH, in addition
to any affirmative vote of stockholders required by law or this
Certificate of Incorporation, any direct or indirect purchase or
other acquisition by the Corporation of any Equity Security (as
hereinafter defined) of any class from any Interested Person (as
hereinafter defined) shall require the affirmative vote of the
holders of at least 80% of the Voting Stock of the Corporation that
is not beneficially owned (for purposes of this Article TENTH
beneficial ownership shall be determined in accordance with Section
C.2(b) of Article FOURTH hereof) by such Interested Person, voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or by any other provisions
of this Certificate of Incorporation or any Preferred Stock
Designation or in any agreement with any national securities exchange
or quotation system, or otherwise. Certain defined terms used in this
Article TENTH are as set forth in Section C below.
B. The provisions of Section A of this Article TENTH shall not be
applicable with respect to:
1. any purchase or other acquisition of securities made as part
of a tender or exchange offer by the Corporation or a
Subsidiary (which term, as used in this Article TENTH, is as
defined in the first clause of Section C.6 of Article EIGHTH
hereof) of the Corporation to purchase securities of the same
class made on the same terms to all holders of such
securities and complying with the applicable requirements of
the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provision replacing
such Act, rules or regulations);
2. any purchase or acquisition made pursuant to an open market
purchase program approved by a majority of the Board of
Directors, including a majority of the Disinterested
Directors (which term, as used in this Article TENTH, is as
defined in Article EIGHTH hereof); or
3. any purchase or acquisition which is approved by a majority
of the Board of Directors, including a majority of the
Disinterested Directors, and which is made at no more than
the Market Price (as hereinafter defined), on the date that
the understanding between the Corporation and the Interested
Person is reached with respect to such purchase (whether or
not such purchase is made or a written agreement relating to
such purchase is executed on such date), of shares of the
class of Equity Security to be purchased.
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C. For the purposes of this Article TENTH:
1. The term Interested Person shall mean any Person (other than
the Corporation, Subsidiaries of the Corporation, pension,
profit sharing, employee stock ownership or other employee
benefit plans of the Corporation and its Subsidiaries,
entities organized or established by the Corporation or any
of its Subsidiaries pursuant to the terms of such plans and
trustees and fiduciaries with respect to any such plan acting
in such capacity) that is the direct or indirect beneficial
owner of 5% or more of the Voting Stock of the Corporation,
and any Affiliate or Associate of any such person.
2. The Market Price of shares of a class of Equity Security on
any day shall mean the highest sale price of shares of such
class of Equity Security on such day, or, if that day is not
a trading day, on the trading day immediately preceding such
day, on the national securities exchange or the Nasdaq System
or any other system then in use on which such class of Equity
Security is traded.
3. The term Equity Security shall mean any security described in
Section 3(a)(11) of the Securities Exchange Act of 1934, as
in effect on August 31, 1994, which is traded on a national
securities exchange or the Nasdaq System or any other system
then in use.
4. For purposes of this Article TENTH, all references to the
term Interested Stockholder in the definition of
Disinterested Director shall be deemed to refer to the term
Interested Person.
ELEVENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter
a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another
corporation, including, without limitation, any Subsidiary (as
defined in Article EIGHTH herein), partnership, joint venture, trust
or other enterprise, including service with respect to an employee
benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such
law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes
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or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Section C hereof with respect to
proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation.
B. The right to indemnification conferred in Section A of this Article
shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication"), that such indemnitee is
not entitled to be indemnified for such expenses under this Section
or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article shall be
contract rights and such rights shall continue as to an indemnitee
who has ceased to be a director or officer and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article is not paid in full
by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought
by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the indemnitee shall also be entitled to
be paid the expense of prosecuting or defending such suit. In (i) any
suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a
right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard
of conduct or, in the case of such a suit brought by the indemnitee,
be a defense to such
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suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is
not entitled to be indemnified, or to such advancement of expenses,
under this Article or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, By-laws, agreement, vote
of stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General
Corporation Law.
F. The Corporation may, to the extent authorized from time to time by a
majority vote of the disinterested directors, grant rights to
indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
TWELFTH: A director of this Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (A) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (B) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (C) under Section 174 of the Delaware General
Corporation Law, or (D) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is hereafter
amended to further eliminate or limit the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
THIRTEENTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Certificate of Incorporation or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the stock of this
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then-outstanding shares of the capital stock of the Corporation entitled
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to vote generally in the election of directors (after giving effect to the
provisions of Article FOURTH), voting together as a single class, shall be
required to amend or repeal this Article THIRTEENTH, clauses B or C of Article
FOURTH, clauses C or D of Article FIFTH, Article SIXTH, Article SEVENTH, Article
EIGHTH, Article TENTH or Article ELEVENTH.
FOURTEENTH: The name and mailing address of the sole incorporator are
as follows:
NAME MAILING ADDRESS
------------------------------ -----------------------------------
David B. Barbour 344 Seventeenth Street
Ashland, Kentucky 41101
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