FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PEOPLES FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 34-1822228
------------------------ -------------------
(State of incorporation) (I.R.S. Employer
Identification No.)
211 LINCOLN WAY EAST, MASSILLON, OHIO 44646
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
NONE NONE
---------- ----------
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. ____
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. ____
Securities to be registered pursuant to Section 12(g) of the Act:
Common shares, no par value
(Title of Class)
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<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The information with respect to the Common Shares of Peoples Financial
Corporation (the "Registrant") contained in the Prospectus of the Registrant
filed with the Securities and Exchange Commission on August 7, 1996, on pages
85 and 86, under the heading "DESCRIPTION OF AUTHORIZED SHARES" and under the
headings cross referenced on such pages is incorporated herein by reference.
Item 2. Exhibits.
1 Form of certificate of common shares of Peoples Financial
Corporation
2(a) Articles of Incorporation of Peoples Financial Corporation
2(b) Certificate of Amendment to the Articles of Incorporation of Peoples
Financial Corporation
2(c) Code of Regulations of Peoples Financial Corporation
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<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
PEOPLES FINANCIAL CORPORATION
(Registrant)
Date: August 19, 1996 By: Paul von Gunten
------------------------- -----------------------
Paul von Gunten
President
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<PAGE>
PEOPLES FINANCIAL CORPORATION
REGISTRATION STATEMENT ON FORM 8-A
INDEX TO EXHIBITS
EXHIBIT
NO. EXHIBIT
------- -----------------
1 Form of Certificate of common
shares of Peoples Financial
Corporation
2(a) Articles of Incorporation of
Peoples Financial Corporation
2(b) Certificate of Amendment to
the Articles of Incorporation
of Peoples Financial
Corporation
2(c) Code of Regulations of
Peoples Financial Corporation
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FORM OF SHARE CERTIFICATE
[FRONT]
COMMON SHARES COMMON SHARES
NUMBER Peoples Financial SHARES
(SPECIMEN) Corporation (SPECIMEN)
INCORPORATED UNDER THE LAWS SEE REVERSE SIDE FOR CERTAIN
OF THE STATE OF OHIO DEFINITIONS AND RESTRICTIONS
CUSIP 71103A 10 4
THIS CERTIFIES THAT (SPECIMEN) is the owner of _____ fully paid and
nonassessable common shares, no par value, of Peoples Financial Corporation
(the "Corporation") and Ohio corporation. The shares represented by this
certificate are transferable only on the books of the Corporation by the
holder of record hereof, or by his duly authorized attorney or legal
representative, upon the surrender of this certificate properly endorsed. This
certificate is is not valid until countersigned and registered by the
Corporation'stransfer agent and registrar.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by the facsimile signatures of its duly authorized officers and has
caused a facsimile of its corporate seal to be hereunto affixed.
Dated ______________ This Security is Not A Deposit Or Account
And is Not Federally Insured Or Guaranteed.
Vincent G. Matecheck Paul von Guntent
Secretary President
Countersigned and registered: FIFTH-THIRD BANK (Cincinnati, Ohio) Transfer
Agent and Registrar.
By ______________________________________
Authorized Signature
<PAGE>
FORM OF SHARE CERTIFICATE
[BACK]
PEOPLES FINANCIAL CORPORATION
The interest in Peoples Financial Corporation (the "Corporation")
evidenced by this Certificate may not be transferred, sold, retired or
withdrawn except as provided in the Rules and Regulations promulgated by the
Office of Thrift Supervision and the Articles of Incorporation and Regulations
of the Corporation.
This Corporation will mail to the holder of the common shares evidenced
hereby a copy of the express terms of such shares without charge within five
(5) days after receipt of a written request therefor.
The common shares evidenced hereby are not accounts of an insurable type
and are not insured by the Federal Deposit Insurance Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
UNIF GIFT MIN ACT - ____________ Custodian______________
TEN COM - as tenants in common (Cust) (Minor)
TEN ENT - as tenants by the entireties under Unifom Gifts to Minors
JT TEN - as joint tenants with
right of survivorship and Act __________________________
not as tenants in common (State)
TOD - transfer on death
UNIF TRF MIN ACT - _____________Custodian (until age ___)
_______________ under Uniform Transfers
to Minors Act (____________)
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _________________ hereby sell, assign
and transfer unto ____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
____________of the shares represented by the within Certificate, and do hereby
irrevocably constitute and appoint _________________ Attorney to transfer the
said shares on the books of the within named Corporation, with full power of
substitution in the premises.
Dated ____________________
X______________________________
X______________________________
NOTICE: The signature on this Assignment must correspond with the name as
written upon the face of this Certificate, in every particular, without
alteration or enlargement, or any change whatever.
In the presence of ______________________________
ARTICLES OF INCORPORATION
OF
PEOPLES FINANCIAL CORPORATION
The undersigned, desiring to form a corporation for profit under Chapter
1701 of the Ohio Revised Code, does hereby certify:
FIRST: The name of the corporation shall be Peoples Financial
Corporation.
SECOND: The place in Ohio where the principal office of the corporation
is to be located is 211 Lincoln Way East, City of Massillon, County of Stark,
State of Ohio, 44646.
THIRD: The purpose for which the corporation is formed is to engage in
any lawful act or activity for which corporations may be formed under Section
1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The authorized shares of the corporation shall be eight hundred
and fifty (850) common shares, each without par value. The directors of the
corporation may adopt an amendment to the Articles of Incorporation of the
corporation in respect of any unissued or treasury shares of any class and
thereby fix or change: the division of such shares into series and the
designation and authorized number of each series; the dividend rate; the dates
of payment of dividends and the dates from which they are cumulative; the
liquidation price; the redemption rights and price; the sinking fund
requirements; the conversion rights; and the restrictions on the issuance of
shares of any class or series.
FIFTH: (A) The board of directors of the corporation shall have the power
to cause the corporation from time to time and at any time to purchase, hold,
sell, transfer or otherwise deal with (i) shares of any class or series issued
by it, (ii) any security or other obligation of the corporation which may
confer upon the holder thereof the right to convert the same into shares of
any class or series authorized by the articles of the corporation, and (iii)
any security or other obligation which may confer upon the holder thereof the
right to purchase shares of any class or series authorized by the Articles of
Incorporation of the corporation.
(B) The corporation shall have the right to repurchase, if and when any
shareholder desires to sell, or on the happening of any event is required to
sell, shares of any class or series issued by the corporation.
(C) The authority granted in this Article Fifth shall not limit the
plenary authority of the directors to purchase, hold, sell, transfer or
otherwise deal with shares of any class or series, securities or other
obligations issued by the corporation or authorized by the Articles of
Incorporation of the corporation.
<PAGE>
SIXTH: Notwithstanding any provision of the Ohio Revised Code requiring
for any purpose the vote, consent, waiver or release of the holders of shares
of the corporation entitling them to exercise any proportion of the voting
power of the corporation or of any class or classes thereof, such action,
unless expressly otherwise provided by statute, may be taken by the vote,
consent, waiver or release of the holders of shares entitling them to exercise
not less than a majority of the voting power of the corporation or of such
class or classes; provided, however, that if the board of directors of the
corporation shall recommend against the approval of any of the following
matters, the affirmative vote of the holders of shares entitling them to
exercise not less than seventy-five percent (75%) of the voting power of any
class or classes of shares of the corporation which entitle the holders
thereof to vote in respect of any such matter as a class shall be required to
adopt:
(A) A proposed amendment to the Articles of Incorporation of the
corporation;
(B) A proposed amendment to the Code of Regulations of the
corporation;
(C) A proposal to change the number of directors by action of the
shareholders;
(D) An agreement of merger or consolidation providing for the
proposed merger or consolidation of the corporation with or
into one or more other corporations;
(E) A proposed combination of majority share acquisition involving
the issuance of shares of the corporation and requiring
shareholder approval;
(F) A proposal to sell, exchange, transfer or otherwise dispose of
all, or substantially all, of the assets, with or without the
goodwill, of the corporation; or
(G) A proposed dissolution of the corporation.
SEVENTH: Until the expiration of five years from the date of the
acquisition by the corporation of the capital stock of Peoples Federal Savings
and Loan Association of Massillon ("Peoples Federal") to be issued in
connection with the conversion of Peoples Federal from mutual to stock form,
no Person (hereinafter defined) shall directly or indirectly Offer
(hereinafter defined) to Acquire (hereinafter defined) or Acquire the
Beneficial Ownership (hereinafter defined) of more than ten percent (10%) of
any class of any equity security of the corporation; provided, however, that
such prohibition shall not apply to the purchase of shares by underwriters in
connection with a public offering, or to the purchase of up to twenty five
percent (25%) of any class of equity security of the corporation by a
tax-qualified employee stock benefit plan. In the event that any shares of the
corporation are Acquired in violation of this Article Seventh, all shares
Beneficially Owned by any Person in excess of ten percent (10%) of any class
of equity security of the corporation shall not be counted as shares entitled
<PAGE>
to vote, shall not be voted by any Person and shall not be counted as voting
shares in connection with any matter submitted to the shareholders for a vote.
For purposes of this Article Seventh, the following terms shall have the
meaning set forth below:
(A) "Person" includes an individual, a group acting in concert, a
corporation, a partnership, an association, a joint stock
company, a trust, an unincorporated organization or similar
company, a syndicate or any other group formed for the purpose
of acquiring or disposing of the equity securities of the
corporation, but does not include any employee stock benefit
plan of the corporation or subsidiary of the corporation.
(B) "Offer" includes every offer to buy or otherwise acquire,
solicitation of an offer to sell, tender offer for, or request
or invitation for tenders of, a security or interest in a
security for value.
(C) "Acquire" includes every type of acquisition, whether effected
by purchase, exchange, operation of law or otherwise.
(D) "Acting in concert" means (i) participation in a joint activity
or conscious parallel action towards a common goal, whether or
not pursuant to an express agreement, or (ii) a combination or
pooling of voting or other interests in the securities of an
issuer for a common purpose pursuant to any contract,
understanding, relationship, agreement or other arrangement,
whether written or otherwise.
(E) "Beneficial Ownership" shall include, without limitation, (i)
all shares directly or indirectly owned by a Person, by an
Affiliate (hereinafter defined) of such Person or by an
Associate (hereinafter defined) of such Person or such
Affiliate, (ii) all shares which such Person, Affiliate or
Associate has the right to acquire through the exercise of any
option, warrant or right (whether or not currently
exercisable), through the conversion of a security, pursuant to
the power to revoke a trust, discretionary account or similar
arrangement, or pursuant to the automatic termination of a
trust, discretionary account or similar arrangement, and (iii)
all shares as to which such Person, Affiliate or Associate
directly or indirectly through any contract, arrangement,
understanding, relationship or otherwise (including, without
limitation, any written or unwritten agreement to act in
concert) has or shares voting power (which includes the power
to vote or to direct the voting of such shares) or investment
power (which includes the power to dispose or to direct the
disposition of such shares) or both.
<PAGE>
(F) "Affiliate" shall mean a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with another Person.
(G) "Associate" of a Person shall mean (i) any corporation or
organization (other than the corporation or a subsidiary of the
corporation) of which the Person is an officer or partner or
is, directly or indirectly, the beneficial owner of ten percent
or more of any class of equity securities, (ii) any trust or
other estate, except any employee stock benefit plan, in which
the Person has a substantial beneficial interest or as to which
the Person serves as trustee or in a similar fiduciary
capacity, and (iii) any relative or spouse of the Person, or
any relative of such spouse, who has the same home as the
Person or is a director or officer of the corporation or any of
its parents or subsidiaries.
EIGHTH: No shareholder of the corporation shall have, as a matter of
right, the pre-emptive right to purchase or subscribe for shares of any class,
now or hereafter authorized, or to purchase or subscribe for securities or
other obligations convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for or purchase
any such shares.
IN WITNESS WHEREOF, I have hereunto signed my name this sixth day of
November, 1995.
/s/ Vincent G. Matecheck
--------------------------------------
Vincent G. Matecheck, Incorporator
CERTIFICATE OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
PEOPLES FINANCIAL CORPORATION
Paul von Gunten, President, and Vincent G. Matecheck, Secretary, of
Peoples Financial Corporation (the "Corporation"), do hereby certify that the
following resolutions were duly adopted in a writing signed by the sole
shareholder of the Corporation, effective May 6, 1996, in accordance with Ohio
Revised Code Section 1701.54:
RESOLVED, that the Articles of Incorporation of Peoples Financial
Corporation be amended by deleting Article FOURTH in its entirety and
substituting therefor the following new Article FOURTH:
FOURTH: The authorized shares of the corporation shall be
seven million (7,000,000), six million of which shall be
common shares, each without par value, and one million
(1,000,000) of which shall be preferred shares, each
without par value. The directors of the corporation may
adopt an amendment to the Articles of Incorporation in
respect of any unissued or treasury shares of any class
and thereby fix or change: the division of such shares
into series and the designation and authorized number of
each series; the dividend rate; the dates of payment of
dividends and the dates from which they are cumulative;
the liquidation price; the redemption rights and price;
the sinking fund requirements; the conversion rights; and
the restrictions on the issuance of shares of any class or
series.
FURTHER RESOLVED, that the Articles of Incorporation of Peoples Financial
Corporation be amended by adding thereto the following Article NINTH:
NINTH: No shareholder of the corporation shall have the
right to vote cumulatively in the election of directors.
IN WITNESS WHEREOF, the undersigned have hereunto set heir hands this 6th
day of May, 1996.
/s/ Paul von Gunten
----------------------------------
Paul von Gunten
President
/s/ Vincent G. Matecheck
----------------------------------
Vincent G. Matecheck
Secretary
REGULATIONS
OF
PEOPLES FINANCIAL CORPORATION
INDEX
Section Caption Page No.
- - - ------- ------- --------
ARTICLE ONE
MEETINGS OF SHAREHOLDERS
1.01 Annual Meetings.....................................1
1.02 Calling of Meetings.................................1
1.03 Place of Meetings...................................1
1.04 Notice of Meetings..................................1
1.05 Waiver of Notice....................................2
1.06 Quorum..............................................2
1.07 Votes Required......................................2
1.08 Order of Business...................................2
1.09 Shareholders Entitled to Vote.......................2
1.10 Cumulative Voting...................................3
1.11 Proxies.............................................3
1.12 Inspectors of Election..............................3
ARTICLE TWO
DIRECTORS
2.01 Authority and Qualifications........................3
2.02 Number of Directors and Term of Office..............3
2.03 Nomination..........................................4
2.04 Election............................................5
2.05 Removal.............................................5
2.06 Vacancies...........................................5
2.07 Meetings............................................5
2.08 Notice of Meetings..................................5
2.09 Waiver of Notice................................... 6
2.10 Quorum............................................. 6
2.11 Executive Committee................................ 6
2.12 Compensation....................................... 7
2.13 By-Laws............................................ 7
<PAGE>
ARTICLE THREE
OFFICERS
Section Caption Page No.
- - - ------- ------- --------
3.01 Officers........................................... 7
3.02 Tenure of Office................................... 7
3.03 Duties of the Chairman of the Board................ 7
3.04 Duties of the President............................ 7
3.05 Duties of the Vice Presidents.......................8
3.06 Duties of the Secretary............................ 8
3.07 Duties of the Treasurer............................ 8
ARTICLE FOUR
SHARES
4.01 Certificates....................................... 8
4.02 Transfers.......................................... 9
4.03 Transfer Agents and Registrars......................9
4.04 Lost, Wrongfully Taken or Destroyed
Certificates......................................9
4.05 Uncertificated Shares...............................9
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
5.01 Mandatory Indemnification..........................10
5.02 Court-Approved Indemnification.....................10
5.03 Indemnification for Expenses.......................11
5.04 Determination Required.............................11
5.05 Advances for Expenses..............................11
5.06 Article Five Not Exclusive.........................12
5.07 Insurance..........................................12
5.08 Certain Definitions................................12
5.09 Venue 13
ARTICLE SIX
MISCELLANEOUS
6.01 Amendments.........................................13
6.02 Action by Shareholders or Directors
Without a Meeting................................13
<PAGE>
CODE OF REGULATIONS
OF
PEOPLES FINANCIAL CORPORATION
ARTICLE ONE
MEETINGS OF SHAREHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the
shareholders for the election of directors, for the consideration of reports
to be laid before such meeting and for the transaction of such other business
as may properly come before such meeting shall be held on the fourth Monday of
January in each year at 4:00 p.m., or on such other date and at such other
time as may be fixed from time to time by the directors.
Section 1.02. Calling of Meetings. Meetings of the shareholders
may be called only by the chairman of the board, the president, or, in case of
the president's absence, death, or disability, the vice president authorized
to exercise the authority of the president; the secretary; the directors by
action at a meeting, or a majority of the directors acting without a meeting;
or the holders of at least twenty-five percent of all shares outstanding and
entitled to vote thereat.
Section 1.03. Place of Meetings. All meetings of shareholders
shall be held at the principal office of the corporation, unless otherwise
provided by action of the directors. Meetings of shareholders may be held at
any place within or without the State of Ohio.
Section 1.04. Notice of Meetings. (A) Written notice stating
the time, place and purposes of a meeting of the shareholders shall be given
either by personal delivery or by mail not less than seven nor more than sixty
days before the date of the meeting (1) to each shareholder of record entitled
to notice of the meeting, (2) by or at the direction of the president or the
secretary. If mailed, such notice shall be addressed to the shareholder at his
address as it appears on the records of the corporation. Notice of adjournment
of a meeting need not be given if the time and place to which it is adjourned
are fixed and announced at such meeting. In the event of a transfer of shares
after the record date for determining the shareholders who are entitled to
receive notice of a meeting of shareholders, it shall not be necessary to give
notice to the transferee. Nothing herein contained shall prevent the setting
of a record date in the manner provided by law, the Articles or the
Regulations for the determination of shareholders who are entitled to receive
notice of or to vote at any meeting of shareholders or for any purpose
required or permitted by law.
(B) Following receipt by the president or the secretary of a
request in writing, specifying the purpose or purposes for which the persons
properly making such request have called a meeting of the shareholders,
delivered either in person or by registered mail to such officer by any
persons entitled to call a meeting of shareholders, such officer shall cause
to be given to the shareholders entitled thereto notice of a meeting to be
held on a date not less than seven nor more than sixty days after the receipt
of such request, as such officer may fix. If such notice is not given within
fifteen days after the receipt of such request by the president or the
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<PAGE>
secretary, then, and only then, the persons properly calling the meeting may
fix the time of meeting and give notice thereof in accordance with the
provisions of the Regulations.
Section 1.05. Waiver of Notice. Notice of the time, place and
purpose or purposes of any meeting of shareholders may be waived in writing,
either before or after the holding of such meeting, by any shareholders, which
writing shall be filed with or entered upon the records of such meeting. The
attendance of any shareholder, in person or by proxy, at any such meeting
without protesting the lack of proper notice, prior to or at the commencement
of the meeting, shall be deemed to be a waiver by such shareholder of notice
of such meeting.
Section 1.06. Quorum. At any meeting of shareholders, the
holders of a majority of the voting shares of the corporation then outstanding
and entitled to vote thereat, present in person or by proxy, shall constitute
a quorum for such meeting. The holders of a majority of the voting shares
represented at a meeting, whether or not a quorum is present, or the chairman
of the board, the president, or the officer of the corporation acting as
chairman of the meeting, may adjourn such meeting from time to time, and if a
quorum is present at such adjourned meeting, any business may be transacted as
if the meeting had been held as originally called.
Section 1.07. Votes Required. At all elections of directors,
the candidates receiving the greatest number of votes shall be elected. Any
other matter submitted to the shareholders for their vote shall be decided by
the vote of such proportion of the shares, or of any class of shares, or of
each class, as is required by law, the Articles or the Regulations.
Section 1.08. Order of Business. The order of business at any
meeting of shareholders shall be determined by the officer of the corporation
acting as chairman of such meeting unless otherwise determined by a vote of
the holders of a majority of the voting shares of the corporation then
outstanding, present in person or by proxy, and entitled to vote at such
meeting.
Section 1.09. Shareholders Entitled to Vote. Each shareholder
of record on the books of the corporation on the record date for determining
the shareholders who are entitled to vote at a meeting of shareholders shall
be entitled at such meeting to one vote for each share of the corporation
standing in his name on the books of the corporation on such record date. The
directors may fix a record date for the determination of the shareholders who
are entitled to receive notice of and to vote at a meeting of shareholders,
which record date shall not be a date earlier than the date on which the
record date is fixed and which record date may be a maximum of sixty days
preceding the date of the meeting of shareholders.
Section 1.10. Cumulative Voting. If notice in writing shall be
given by a shareholder to the president, a vice president or the secretary of
the corporation, not less than forty-eight hours before the time fixed for
holding a meeting of the shareholders for the purpose of electing directors if
notice of such meeting shall have been given at least ten days prior thereto,
and otherwise not less than twenty-four hours before such time, that such
shareholder desires that the voting at such election shall be cumulative, and
if an announcement of the giving of such notice is made upon the convening of
the meeting by the chairman or secretary or by or on behalf of the shareholder
giving such notice, each shareholder shall have the right to cumulate such
voting power as he possesses and to give one candidate as many votes as is
determined by multiplying the number of directors to be elected by the number
of votes to which such shareholder is entitled, or to distribute such number
of votes on the same principle among two or more candidates, as he sees fit.
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<PAGE>
Section 1.11. Proxies. At meetings of the shareholders, any
shareholder of record entitled to vote thereat may be represented and may vote
by a proxy or proxies appointed by an instrument in writing signed by such
shareholder, but such instrument shall be filed with the secretary of the
meeting before the person holding such proxy shall be allowed to vote
thereunder. No proxy shall be valid after the expiration of eleven months
after the date of its execution, unless the shareholder executing it shall
have specified therein the length of time it is to continue in force.
Section 1.12. Inspectors of Election. In advance of any meeting
of shareholders, the directors may appoint inspectors of election to act at
such meeting or any adjournment thereof; if inspectors are not so appointed,
the officer of the corporation acting as chairman of any such meeting may make
such appointment. In case any person appointed as inspector fails to appear or
act, the vacancy may be filled only by appointment made by the directors in
advance of such meeting or, if not so filled, at the meeting by the officer of
the corporation acting as chairman of such meeting. No other person or persons
may appoint or require the appointment of inspectors of election.
ARTICLE TWO
DIRECTORS
Section 2.01. Authority and Qualifications. Except where the
law, the Articles or the Regulations otherwise provide, all authority of
the corporation shall be vested in and exercised by its directors. Direc-
tors need not be shareholders of the corporation.
Section 2.02. Number of Directors and Term of Office.
(A) Until changed in accordance with the provisions of the
Regulations, the number of directors of the corporation shall be six. Each
director shall be elected to serve a term of two years and until his successor
is duly elected and qualified or until his earlier resignation, removal from
office, or death.
(B) The number of directors may be fixed or changed at a
meeting of the shareholders called for the purpose of electing directors at
which a quorum is present, only by the affirmative vote of the holders of not
less than a majority of the voting shares which are represented at the
meeting, in person or by proxy, and entitled to vote on such proposal.
(C) The directors may fix or change the number of directors and
may fill any director's office that is created by an increase in the number of
directors; provided, however, that the directors may not increase the number
of directors to greater than fifteen nor reduce the number of directors to
fewer than five.
(D) No reduction in the number of directors shall of itself
have the effect of shortening the term of any incumbent director.
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<PAGE>
Section 2.03. Nomination .
(A) Any nominee for election as a director of the corporation
may be proposed only by the directors or by any shareholder entitled to vote
for the election of directors. No person, other than a nominee proposed by the
directors, may be nominated for election as a director of the corporation
unless such person shall have been proposed in a written notice, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary of
the corporation at the principal offices of the corporation. In the case of a
nominee proposed for election as a director at an annual meeting of
shareholders, such written notice of a proposed nominee shall be received by
the Secretary of the corporation on or before the later of (i) the November
30th immediately preceding such annual meeting, or (ii) the sixtieth (60th)
day before the first anniversary of the most recent annual meeting of
shareholders of the corporation held for the election of directors; provided,
however, that if the annual meeting for the election of directors in any year
is not held on or before the thirty-first (31st) day next following such
anniversary, then the written notice required by this subparagraph (A) shall
be received by the Secretary within a reasonable time prior to the date of
such annual meeting. In the case of a nominee proposed for election as a
director at a special meeting of shareholders at which directors are to be
elected, such written notice of a proposed nominee shall be received by the
Secretary of the corporation no later than the close of business on the
seventh day following the day on which notice of the special meeting was
mailed to shareholders. Each such written notice of a proposed nominee shall
set forth (1) the name, age and business or residence address of each nominee
proposed in such notice, (2) the principal occupation or employment of each
such nominee, and (3) the number of common shares of the corporation owned
beneficially and/or of record by each such nominee and the length of time any
such shares have been so owned.
(B) If a shareholder shall attempt to nominate one or more
persons for election as a director at any meeting at which directors are to be
elected without having identified each such person in a written notice given
as contemplated by, and/or without having provided therein the information
specified in, subparagraph (A) of this Section, each such attempted nomination
shall be invalid and shall be disregarded unless the person acting as Chairman
of the meeting determines that the facts warrant the acceptance of such
nomination.
Section 2.04. Election. At each annual meeting of shareholders
for the election of directors, the successors to the directors whose terms,
shall expire in that year shall be elected, but if the annual meeting is not
held or if one or more of such directors are not elected thereat, they may be
elected at a special meeting called for that purpose. The election of
directors shall be by ballot whenever requested by the presiding officer of
the meeting or by the holders of a majority of the voting shares outstanding,
entitled to vote at such meeting and present in person or by proxy, but unless
such request is made, the election shall be by voice vote.
Section 2.05. Removal. A director or directors may be removed
from office, with or without assigning any cause, only by the vote of the
holders of shares entitling them to exercise not less than a majority of the
voting power of the corporation to elect directors in place of those to be
removed, provided that unless all the directors, or all the directors of a
particular class (if the directors of the corporation are divided into
classes), are removed, no individual director shall be removed in case the
votes of a sufficient number of shares are cast against his removal that, if
cumulatively voted at an election of all directors, or all the directors of a
particular class, as the case may be, would be sufficient to elect at least
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one director. In case of any such removal, a new director may be elected at
the same meeting for the unexpired term of each director removed. Failure to
elect a director to fill the unexpired term of any director removed shall be
deemed to create a vacancy in the board.
Section 2.06. Vacancies. The remaining directors, though less
than a majority of the whole authorized number of directors, may, by the vote
of a majority of their number, fill any vacancy in the board for the unexpired
term. A vacancy in the board exists within the meaning of this Section 2.06 in
case the shareholders increase the authorized number of directors but fail at
the meeting at which such increase is authorized, or an adjournment thereof,
to elect the additional directors provided for, or in case the shareholders
fail at any time to elect the whole authorized number of directors.
Section 2.07. Meetings. A meeting of the directors shall be
held immediately following the adjournment of each annual meeting of
shareholders at which directors are elected, and notice of such meeting need
not be given. The directors shall hold such other meetings as may from time to
time be called, and such other meetings of directors may be called only by the
chairman of the board, the president, or any two directors. All meetings of
directors shall be held at the principal office of the corporation or at such
other place as the directors may from time to time determine by resolution.
Meetings of the directors may be held through any communications equipment if
all persons participating can hear each other, and participation in a meeting
pursuant to this provision shall constitute presence at such meeting.
Section 2.08. Notice of Meetings. Notice of the time and place
of each meeting of directors for which such notice is required by law, the
Articles, the Regulations or the By-Laws shall be given to each of the
directors by at least one of the following methods:
(A) In a writing mailed not less than three days before such
meeting and addressed to the residence or usual place of
business of a director, as such address appears on the
records of the corporation; or
(B) By telegraph, cable, radio, wireless, or a writing sent
or delivered to the residence or usual place of business
of a director as the same appears on the records of the
corporation, not later than the day before the date on
which such meeting is to be held; or
(C) Personally or by telephone not later than the day before
the date on which such meeting is to be held.
Notice given to a director by any one of the methods specified in the
Regulations shall be sufficient, and the method of giving notice to all
directors need not be uniform. Notice of any meeting of directors may be given
only by the chairman of the board, the president or the secretary of the
corporation. Any such notice need not specify the purpose or purposes of the
meeting. Notice of adjournment of a meeting of directors need not be given if
the time and place to which it is adjourned are fixed and announced at such
meeting.
Section 2.09. Waiver of Notice. Notice of any meeting of
directors may be waived in writing, either before or after the holding of such
meeting, by any director, which writing shall be filed with or entered upon
the records of the meeting. The attendance of any director at any meeting of
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directors without protesting, prior to or at the commencement of the meeting,
the lack of proper notice, shall be deemed to be a waiver by him of notice of
such meeting.
Section 2.10. Quorum. A majority of the whole authorized number
of directors shall be necessary to constitute a quorum for a meeting of
directors, except that a majority of the directors in office shall constitute
a quorum for filling a vacancy in the board. The act of a majority of the
directors present at a meeting at which a quorum is present is the act of the
board, except as otherwise provided by law, the Articles or the Regulations.
Section 2.11. Executive Committee. The directors may create an
executive committee or any other committee of directors, to consist of not
less than three directors, and may authorize the delegation to such executive
committee or other committees of any of the authority of the directors,
however conferred, other than that of filling vacancies among the directors or
in the executive committee or in any other committee of the directors.
Such executive committee or any other committee of directors
shall serve at the pleasure of the directors, shall act only in the intervals
between meetings of the directors, and shall be subject to the control and
direction of the directors. Such executive committee or other committee of
directors may act by a majority of its members at a meeting or by a writing or
writings signed by all of its members.
Any act or authorization of any act by the executive committee
or any other committee within the authority delegated to it shall be as
effective for all purposes as the act or authorization of the directors. No
notice of a meeting of the executive committee or of any other committee of
directors shall be required. A meeting of the executive committee or of any
other committee of directors may be called only by the president or by a
member of such executive or other committee of directors. Meetings of the
executive committee or of any other committee of directors may be held through
any communications equipment if all persons participating can hear each other
and participation in such a meeting shall constitute presence thereat.
Section 2.12. Compensation. Directors shall be entitled to
receive as compensation for services rendered and expenses incurred as
directors such amounts as the directors may determine.
Section 2.13. By-Laws. The directors may adopt, and amend
from time to time, By-Laws for their own government, which By-Laws shall
not be inconsistent with the law, the Articles or the Regulations.
ARTICLE THREE
OFFICERS
Section 3.01. Officers. The officers of the corporation to be
elected by the directors shall be a president, a secretary, a treasurer, and,
if desired, one or more vice presidents and such other officers and assistant
officers as the directors may from time to time elect. The directors may elect
a chairman of the board, who must be a director. Officers need not be
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shareholders of the corporation and may be paid such compensation as the board
of directors may determine. Any two or more offices may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required by law, the Articles,
the Regulations or the By-Laws to be executed, acknowledged or verified by two
or more officers.
Section 3.02. Tenure of Office. The officers of the corporation
shall hold office at the pleasure of the directors. Any officer of the
corporation may be removed, either with or without cause, at any time, by the
affirmative vote of a majority of all the directors then in office; such
removal, however, shall be without prejudice to the contract rights, if any,
of the person so removed.
Section 3.03. Duties of the Chairman of the Board. The chairman
of the board, if any, shall preside at all meetings of the directors. He shall
have such other powers and duties as the directors shall from time to time
assign to him.
Section 3.04. Duties of the President. The president shall be
the chief executive officer of the corporation, shall exercise supervision
over the business of the corporation and shall have, among such additional
powers and duties as the directors may from time to time assign to him, the
power and authority to sign all certificates evidencing shares of the
corporation and all deeds, mortgages, bonds, contracts, notes and other
instruments requiring the signature of the president of the corporation. It
shall be the duty of the president to preside at all meetings of shareholders.
Section 3.05. Duties of the Vice Presidents. In the absence of
the president or in the event of his inability or refusal to act, the vice
president, if any (or in the event there be more than one vice president, the
vice presidents in the order designated, or in the absence of any designation,
then in the order of their election), shall perform the duties of the
president, and when so acting, shall have all the powers of and be subject to
all restrictions upon the president. The vice presidents shall perform such
other duties and have such other powers as the directors may from time to time
prescribe.
Section 3.06. Duties of the Secretary. It shall be the duty of
the secretary, or of an assistant secretary, if any, in case of the absence or
inability to act of the secretary, to keep minutes of all the proceedings of
the shareholders and the directors and to make a proper record of the same; to
perform such other duties as may be required by law, the Articles or the
Regulations; to perform such other and further duties as may from time to time
be assigned to him by the directors or the president; and to deliver all
books, paper and property of the corporation in his possession to his
successor, or to the president.
Section 3.07. Duties of the Treasurer. The treasurer, or an
assistant treasurer, if any, in case of the absence or inability to act of the
treasurer, shall receive and safely keep in charge all money, bills, notes,
choses in action, securities and similar property belonging to the
corporation, and shall do with or disburse the same as directed by the
president or the directors; shall keep an accurate account of the finances and
business of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, stated capital and shares, together
with such other accounts as may be required and hold the same open for
inspection and examination by the directors; shall give bond in such sum with
such security as the directors may require for the faithful performance of his
duties; shall, upon the expiration of his term of office, deliver all money
and other property of the corporation in his possession or custody to his
successor or the president; and shall perform such other duties as from time
to time may be assigned to him by the directors.
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ARTICLE FOUR
SHARES
Section 4.01. Certificates. Certificates evidencing ownership
of shares of the corporation shall be issued to those entitled to them. Each
certificate evidencing shares of the corporation shall bear a distinguishing
number; the signatures of the chairman of the board, the president, or a vice
president, and of the secretary or an assistant secretary (except that when
any such certificate is countersigned by an incorporated transfer agent or
registrar, such signatures may be facsimile, engraved, stamped or printed);
and such recitals as may be required by law. Certificates evidencing shares of
the corporation shall be of such tenor and design as the directors may from
time to time adopt and may bear such recitals as are permitted by law.
Section 4.02. Transfers. Where a certificate evidencing a
share or shares of the corporation is presented to the corporation or its
proper agents with a request to register transfer, the transfer shall be
registered as requested if:
(1) An appropriate person signs on each certificate so
presented or signs on a separate document an assignment or transfer of shares
evidenced by each such certificate, or signs a power to assign or transfer
such shares, or when the signature of an appropriate person is written without
more on the back of each such certificate; and
(2) Reasonable assurance is given that the endorsement of each
appropriate person is genuine and effective; the corporation or its agents may
refuse to register a transfer of shares unless the signature of each
appropriate person is guaranteed by a commercial bank or trust company having
an office or a correspondent in the City of New York or by a firm having
membership in the New York Stock Exchange; and
(3) All applicable laws relating to the collection of trans-
fer or other taxes have been complied with; and
(4) The corporation or its agents are not otherwise required or
permitted to refuse to register such transfer.
Section 4.03. Transfer Agents and Registrars. The directors
may appoint one or more agents to transfer or to register shares of the cor-
poration, or both.
Section 4.04. Lost, Wrongfully Taken or Destroyed Certificates.
Except as otherwise provided by law, where the owner of a certificate
evidencing shares of the corporation claims that such certificate has been
lost, destroyed or wrongfully taken, the directors must cause the corporation
to issue a new certificate in place of the original certificate if the owner:
(1) So requests before the corporation has notice that such
original certificate has been acquired by a bona fide purchaser; and
(2) Files with the corporation, unless waived by the directors,
an indemnity bond, with surety or sureties satisfactory to the corporation, in
such sums as the directors may, in their discretion, deem reasonably
sufficient as indemnity against any loss or liability that the corporation may
incur by reason of the issuance of each such new certificate; and
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(3) Satisfies any other reasonable requirements which may be
imposed by the directors, in their discretion.
Section 4.05. Uncertificated Shares. Anything contained in this
Article Fourth to the contrary notwithstanding, the directors may provide by
resolution that some or all of any or all classes and series of shares of the
corporation shall be uncertificated shares, provided that such resolution
shall not apply to (A) shares of the corporation represented by a certificate
until such certificate is surrendered to the corporation in accordance with
applicable provisions of Ohio law or (B) any certificated security of the
corporation issued in exchange for an uncertificated security in accordance
with applicable provisions of Ohio law. The rights and obligations of the
holders of uncertificated shares and the rights and obligations of the holders
of certificates representing shares of the same class and series shall be
identical, except as otherwise expressly provided by law.
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action threatened or
instituted by or in the right of the corporation), by reason of the fact that
he is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, against expenses (including, without limitation, attorneys' fees,
filing fees, court reporters' fees and transcript costs), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, he had no reasonable cause to believe his conduct was unlawful. A
person claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for indemnification,
to have acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and with respect to any
criminal matter, to have had no reasonable cause to believe his conduct was
unlawful, and the termination of any action, suit or proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything con-
tained in the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director
of the corporation who was a party to any completed action or suit instituted
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
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director, trustee, officer, employee or agent of another corporation (domestic
or foreign, nonprofit or for profit), partnership, joint venture, trust or
other enterprise, in respect of any claim, issue or matter asserted in such
action or suit as to which he shall have been adjudged to be liable for acting
with reckless disregard for the best interests of the corporation or
misconduct (other than negligence) in the performance of his duty to the
corporation unless and only to the extent that the Court of Common Pleas of
Stark County, Ohio, or the court in which such action or suit was brought
shall determine upon application that, despite such adjudication of liability,
and in view of all the circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas or such other court
shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated by
this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding, to the extent
that an officer or director of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
in Section 5.01, or in defense of any claim, issue or matter therein, he shall
be promptly indemnified by the corporation against expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) actually and reasonably incurred by him in connection
therewith.
Section 5.04 Determination Required. Any indemnification
required under Section 5.01 and not precluded under Section 5.02 shall be made
by the corporation only upon a determination that such indemnification of the
officer or director is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 5.01. Such determination
may be made only (A) by a majority vote of a quorum consisting of directors of
the corporation who were not and are not parties to, or threatened with, any
such action, suit or proceeding, or (B) if such a quorum is not obtainable or
if a majority of a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for the corporation, or any person to be indemnified, within the past
five years, or (C) by the shareholders, or (D) by the Court of Common Pleas of
Stark County, Ohio, or (if the corporation is a party thereto) the court in
which such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this Section 5.04
at any time including, without limitation, any time before, during or after
the time when any such determination may be requested of, be under
consideration by or have been denied or disregarded by the disinterested
directors under division (A) or by independent legal counsel under division
(B) or by the shareholders under division (C) of this Section 5.04; and no
failure for any reason to make any such determination, and no decision for any
reason to deny any such determination, by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by
shareholders under division (C) of this Section 5.04 shall be evidence in
rebuttal of the presumption recited in Section 5.01. Any determination made by
the disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 to make indemnification in respect of
any claim, issue or matter asserted in an action or suit threatened or brought
by or in the right of the corporation shall be promptly communicated to the
person who threatened or brought such action or suit, and within ten (10) days
after receipt of such notification such person shall have the right to
petition the Court of Common Pleas of Stark County, Ohio, or the court in
which such action or suit was brought, if any, to review the reasonableness of
such determination.
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Section 5.05. Advances for Expenses. Expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding to or on behalf of the
officer or director promptly as such expenses are incurred by him, but only if
such officer or director shall first agree, in writing, to repay all amounts
so paid in respect of any claim, issue or other matter asserted in such
action, suit or proceeding in defense of which he shall not have been
successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in Section
5.04 that he is not entitled to be indemnified by the corporation as provided
under Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted
by or in the right of the corporation in such action or suit, he shall have
been adjudged to be liable for acting with reckless disregard for the best
interests of the corporation or misconduct (other than negligence) in the
performance of his duty to the corporation, unless and only to the extent that
the Court of Common Pleas of Stark County, Ohio, or the court in which such
action or suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is fairly
and reasonably entitled to all or part of such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification
provided by this Article Five shall not be deemed exclusive of any other
rights to which any person seeking indemnification may be entitled under the
Articles or the Regulations or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be an officer or director of
the corporation and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, or agent of another
corporation (domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the obligation or the power to
indemnify him against such liability under the provisions of this Article
Five.
Section 5.08. Certain Definitions. For purposes of this
Article Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article 5
shall be deemed to have been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 5.01, or in defense
of any claim, issue or other matter therein, if such action, suit or
proceeding shall be terminated as to such person, with or without prejudice,
without the entry of a judgment or order against him, without a conviction of
him, without the imposition of a fine upon him and without his payment or
agreement to pay any amount in settlement thereof (whether or not any such
termination is based upon a judicial or other determination of the lack of
merit of the claims made against him or otherwise results in a vindication of
him); and
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(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to
"serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties
on, or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the corporation" within the meaning of that term as used in
this Article Five.
Section 5.09. Venue. Any action, suit or proceeding to
determine a claim for indemnification under this Article Five may be
maintained by the person claiming such indemnification, or by the corporation,
in the Court of Common Pleas of Stark County, Ohio. The corporation and (by
claiming such indemnification) each such person consent to the exercise of
jurisdiction over its or his person by the Court of Common Pleas of Stark
County, Ohio, in any such action, suit or proceeding.
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Amendments. The Regulations may be amended, or
new regulations may be adopted, at a meeting of shareholders held for such
purpose, only by the affirmative vote of the holders of shares entitling them
to exercise not less than a majority of the voting power of the corporation on
such proposal, or without a meeting by the written consent of the holders of
shares entitling them to exercise not less than a majority of the voting power
of the corporation on such proposal.
Section 6.02. Action by Shareholders or Directors Without a
Meeting. Anything contained in the Regulations to the contrary
notwithstanding, except as provided in Section 6.01, any action which may be
authorized or taken at a meeting of the shareholders or of the directors or of
a committee of the directors, as the case may be, may be authorized or taken
without a meeting with the affirmative vote or approval of, and in a writing
or writings signed by, all the shareholders who would be entitled to notice of
a meeting of the shareholders held for such purpose, or all the directors, or
all the members of such committee of the directors, respectively, which
writings shall be filed with or entered upon the records of the corporation.
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