MUTUALFIRST FINANCIAL, INC.
ARTICLES OF RESTATEMENT
OF
ARTICLES OF INCORPORATION
ARTICLE 1. Name. The name of the corporation is
MutualFirst Financial, Inc.
(herein the "Corporation").
ARTICLE 2. Principal Office. The address of the principal
office of the Corporation in the State of Maryland is c/o The Corporation Trust
Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202.
ARTICLE 3. Purpose. The purpose of the Corporation is to
engage in any lawful act or activity for which the corporation may be organized
under the General Corporation Law of the State of Maryland (the "MGCL").
ARTICLE 4. Resident Agent. The name and address of the
registered agent of the Corporation in the State of Maryland is The Corporation
Trust Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202. Said
resident agent is a Maryland corporation.
ARTICLE 5. Initial Directors. The number of directors
constituting the initial board of directors of the Corporation is seven, which
number may be increased or decreased pursuant to the Bylaws of the Corporation
and ARTICLE 9 of the Articles of Incorporation, but shall never be less than the
minimum number permitted by the MGCL now or hereafter in force. The names of the
persons who are to serve as directors until their successors are elected and
qualified, are:
Name Term to Expire in
William V. Hughes 2000
R. Donn Roberts 2000
James D. Rosema 2000
Edward Dobrow 2001
Julie Skinner 2001
Linn A. Crull 2002
Wilbur R. Davis 2002
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ARTICLE 6.
Capital Stock. The total number of shares of capital
stock which the Corporation shall have the authority to issue is
twenty five million (25,000,000) shares consisting of:
1. Five million (5,000,000) shares of preferred
stock, par value one cent ($.0l) per share (the "Preferred
Stock"); and
2. Twenty million (20,000,000) shares of common
stock, par value one cent ($.0l) per share (the "Common
Stock").
The aggregate par value of all the authorized of capital stock
is two hundred fifty thousand dollars ($250,000). Except to the extent required
by governing law, rule or regulation, the shares of capital stock may be issued
from time to time by the Board of Directors without further approval of the
stockholders of the Corporation. The Corporation shall have the authority to
purchase its capital stock out of funds lawfully available therefore which funds
shall include, without limitation, the Corporation's unreserved and unrestricted
capital surplus.
B. Preferred Stock. 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, 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 the Preferred
Stock.
C. Common Stock. Except as provided for in the
Articles of Incorporation (or any resolution or resolutions adopted by the
Board of Directors pursuant hereto) the exclusive voting power shall be
vested in the Common Stock, the holders thereof being entitled to one vote
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for each share of such Common Stock standing in the holder's name on the books
of the Corporation. Subject to any rights and preferences of any class of stock
having preferences over the Common Stock, holders of Common Stock shall be
entitled to such dividends as may be declared by the Board of Directors out of
funds lawfully available therefor. Upon any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or involuntary, holders
of Common Stock shall be entitled to receive pro rata the remaining assets of
the Corporation after payment or provision for payment of all debts and
liabilities of the Corporation and payment or provision for payment of any
amounts owed to the holders of any class of stock having preference over the
Common Stock on distributions on liquidation, dissolution or winding up of the
Corporation.
D. Restrictions on Voting Rights of the
Corporation's Equity Securities.
1. Notwithstanding any other provision of these
Articles 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 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.
2. The following definitions shall apply to this
Section D of this Article.
(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.
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(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, 1994; 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
10) 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, arrangement
or understanding for the purpose of
acquiring, holding, voting or disposing of
any shares of capital stock of this
Corporation;
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and provided further, however, that (1) 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 (2) 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.
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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 Directors as a result of the Holder in Excess
refusing to supply the Corporation with the information
described in the previous sentence.
4. Except as otherwise provided by law or expressly
provided in this Section D, 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 these Articles 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.
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.
6. In the event any provision (or portion thereof) of
this Section D 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,
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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 D 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.
E. Voting Rights of Certain Control Shares.
Notwithstanding any contrary provision of law, the provisions of Subtitle 7
of Title 3 of the MGCL, now or hereafter in force, shall not apply to the
voting rights of the Common Stock of the Corporation as to all existing and
future holders of Common Stock of the Corporation.
F. Majority Vote. Notwithstanding any provision of
law requiring the authorization of any action by a greater proportion than a
majority of the total number of shares of all classes of capital stock or
of the total number of shares of any class of capital stock, such action
shall be valid and effective if authorized by the affirmative vote of the
holders of a majority of the total number of shares of all classes outstanding
and entitled to vote thereon, except as otherwise provided in the Articles of
Incorporation.
ARTICLE 7. Preemptive Rights. No holder of the capital stock
of the Corporation or series of stock or of options, warrants or other rights to
purchase shares of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or subscribe for any
unissued capital stock of any class or series, or any unissued bonds,
certificates of indebtedness, debentures or other securities convertible into or
exchangeable for capital stock of any class or series or carrying any right to
purchase stock of any class or series.
ARTICLE 8. Directors.
A. Management of the Corporation. 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 the Articles of Incorporation or the
Bylaws 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.
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B. Number, Class and Terms of Directors; Cumulative
Voting. 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 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, 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. Stockholders shall not
be permitted to cumulate their votes in the election of directors.
C. Vacancies. 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 on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be
filled only by a majority vote of the directors then in office, though less
than a quorum. A director so chosen by the remaining directors shall hold
office until the next succeeding annual meeting of stockholders, at
which time the stockholders shall elect a director to hold office for the
balance of the term then remaining. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
D. Removal. 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 then only by the affirmative vote of the holders of at least 80%
of the combined 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 6 of the
Articles of Incorporation) voting together as a single class.
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E. Stockholder Proposals and Nominations of
Directors. For any stockholder proposal to be presented in connection with
an annual meeting of stockholders of the Corporation, including any
nomination or proposal relating to the nomination of a director to be
elected to the Board of Directors of the Corporation, the stockholder must
have given timely written notice thereof to the Secretary of the Corporation
in the manner and containing the information required by the Bylaws of the
Corporation. Stockholder proposals to be presented in connection with a special
meeting of stockholders will be presented by the Corporation only to the
extent required by Section 2-502 of the MGCL and the Bylaws of the
Corporation.
ARTICLE 9. Bylaws. The Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws of the Corporation. Any adoption,
amendment or repeal of the Bylaws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of directors which
the Corporation would have if there were no vacancies on the Board of Directors.
The stockholders shall also have power to adopt, amend or repeal the Bylaws 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 the Articles 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 6 hereof), voting together as a
single class, shall be required to adopt, amend or repeal any provisions of the
Bylaws of the Corporation.
ARTICLE 10. Approval of Certain Business Combinations.
A. Super-majority Voting Requirement; Business
Combination Defined. In addition to any affirmative vote required by law
or the Articles 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
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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
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
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"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 the
Articles of Incorporation or any Preferred Stock or in any agreement with any
national securities exchange or quotation system or otherwise.
The term "Business Combination" as used in this Article shall
mean any transaction which is referred to in any one or more of paragraphs 1
through 5 of Section A of this Article.
B. Exception to Super-majority Voting Requirement.
The provisions of Section A of this Article 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 the
Articles 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:
(i) (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
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immediately prior to the first public
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.
(ii) 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 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 or 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):
(i) (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;
(ii) (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
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(iii) 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 Section B.2. of this Article shall be
subject to appropriate adjustment in the event of any
stock dividend, stock split, combination of shares or
similar event.
(d) After such Interested Stockholder has
become an Interested Stockholder and prior to the
consummation of such Business Combination; (i) 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; (ii)
there shall have been (X) 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 (Y) 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 (iii) neither such Interested
Stockholder nor any of its Affiliates shall have
become the beneficial owner of any additional
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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. Certain Definitions. For the purposes of
this Article:
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.
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
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(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, 1999; or
(b) which such Person or any of its
Affiliates or Associates 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 or upon the
exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) 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, 1994, by any other Person with which such
Person or
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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;
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 Section C.2., the number
of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of this
Section C.3. 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, 1999.
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 this Section C.2., 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
<PAGE>
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 on the 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 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 Sections B.2.(a) and B.2.(b)
of this ARTICLE 10 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.
<PAGE>
D. Construction and Interpretation. A majority of
the Disinterested Directors of the Corporation shall have the power and duty to
determine for the purposes of this Article, 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.
E. Fiduciary Duty. Nothing contained in this
Article shall be construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
F. Maryland Business Combination Statute.
Notwithstanding any contrary provision of law, the provisions of Sections 3-601
through 3-604 of the MGCL, as now and hereafter in force, shall not apply to
any business combination (as defined in Section 3-601(e) of the MGCL, as now
and hereafter in force), of the Corporation.
ARTICLE 11. Evaluation of Certain Offers. The Board of
Directors of the Corporation, when evaluating any offer of another Person (as
defined in ARTICLE 10 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
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 10 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.
<PAGE>
ARTICLE 12. Indemnification, etc. of Directors and Officers.
A. Indemnification. The Corporation shall indemnify
(1) its current and former directors and officers, whether serving the
Corporation or at its request any other entity, to the fullest extent required
or permitted by the MGCL now or hereafter in force (but, in the case of any
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), including the advancement
of expenses under the procedures and to the fullest extent permitted by law,
and (2) other employees and agents to such extent as shall be authorized by
the Board of Directors and permitted by law; provided, however, that, except as
provided in Section B 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. Procedure. If a claim under Section A of this
Article is not paid in full by the Corporation within 60 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 20
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, the indemnitee shall also be entitled to be
reimbursed the expense of prosecuting or defending such suit. It shall be a
defense to any action for advancement of expenses that the Corporation has
not received both (i) an undertaking as required by law to repay such advances
in the event it shall ultimately be determined that the standard of conduct
has not been met and (ii) a written affirmation by the indemnitee of his
good faith belief that the standard of conduct necessary for indemnification
by the Corporation has been met. 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 MGCL, 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 suit. In any suit
brought by the indemnitee to enforce a right
<PAGE>
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.
C. Non-Exclusivity. 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 Articles of Incorporation,
Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
D. Insurance. 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 MGCL.
E. Miscellaneous. The Corporation shall not be
liable for any payment under this Article in connection with a claim made by
any indemnitee to the extent such indemnitee has otherwise actually
received payment under any insurance policy, agreement, or otherwise, of the
amounts otherwise indemnifiable hereunder. 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.
Any repeal or modification of this Article shall not in any
way diminish any rights to indemnification or advancement of expenses of such
director or officer or the obligations of the Corporation arising hereunder with
respect to events occurring, or claims made, while this Article is in force.
ARTICLE 13. Limitation of Liability. An officer or director of
the Corporation, as such, shall not be liable to the Corporation or its
stockholders for money damages, except (i) to the extent that it is proved that
the person actually received an improper benefit or profit in money, property or
services for the amount of the benefit or profit in money, property or services
actually
<PAGE>
received; (ii) to the extent that a judgment or other final adjudication adverse
to the person is entered in a proceeding based on a finding in the proceeding
that the person's action, or failure to act, was the result of active and
deliberate dishonesty and was material to the cause of action adjudicated in the
proceeding; or (iii) to the extent otherwise required by the MGCL. If the MGCL
is amended to further eliminate or limit the personal liability of officers and
directors, then the liability of officers and directors of the Corporation shall
be eliminated or limited to the fullest extent permitted by MGCL, 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 or officer of the Corporation existing at the time of
such repeal or modification.
ARTICLE 14. Amendment of the Articles of Incorporation. The
Corporation reserves the right to amend or repeal any provision contained in the
Articles of Incorporation in the manner prescribed by the MGCL and all rights
conferred upon stockholders are granted subject to this reservation; Provided,
however, that, notwithstanding any other provision of the Articles 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 the Articles 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 6), voting together as a single
class, shall be required to amend or repeal this ARTICLE 14, Sections B, D or E
of ARTICLE 6, ARTICLE 8, ARTICLE 9, ARTICLE 10 or ARTICLE 12.
ARTICLE 15. Name and Address of Incorporator. The name and
mailing address of the sole incorporator are as follows:
NAME MAILING ADDRESS
R. Donn Roberts 110 E. Charles Street
Muncie, Indiana 47305
<PAGE>
IN WITNESS WHEREOF, said MutualFirst Financial, Inc. has caused these
Articles of Restatement of Articles of Incorporation to be executed by R. Donn
Roberts, its President and Chief Executive Officer, and attested to by Rosalie
Petro, its Corporate Secretary, this 11th day of January, 2001.
MUTUALFIRST FINANCIAL, INC.
By: /s/ R. Donn Roberts
-------------------------------------
R. Donn Roberts, President and
Chief Executive Officer
By: /s/ Rosalie Petro
------------------------------
Rosalie Petro, Secretary
