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Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
OHIO LEGACY CORP
FIRST: The name of the Corporation shall be OHIO LEGACY CORP.
SECOND: The place in the State of Ohio where the principal office of the
Corporation will be located is Wooster, in Wayne County, or such other location
as the Board of Directors shall from time to time determine.
THIRD: The purposes for which the Corporation is formed is to be a bank holding
company and to engage in any other lawful act or activity for which corporations
may be formed under Sections 1701.01 to 1701.98, inclusive, of the Revised Code
of Ohio, as now in effect or hereinafter amended.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is Two Million Five Hundred Thousand (2,500,000) shares of
Common Stock, without par value, and Five Hundred Thousand (500,000) shares of
Serial Preferred Stock, without par value.
No holder of shares of stock of any class of the Corporation shall, as such
holder, have any rights to subscribe for or purchase (a) any shares of stock of
any class, any warrants, options or other instruments that shall confer upon the
holder thereof the right to subscribe for or purchase or receive from the
Corporation any shares of stock of any class which the Corporation may issue or
sell, whether or not such shares shall be exchangeable for any shares of stock
of the Corporation of any class or classes and whether or not such shares shall
be unissued shares, now or hereafter authorized, or shares acquired by the
Corporation after the issue thereof, and whether or not such shares of stock,
warrants, options or other instruments are issued for cash or services or
property or by way of dividend or otherwise, or (b) any other security of the
Corporation which shall be convertible into, or exchangeable for, any shares of
stock of the Corporation or any class or classes, or to which shall be attached
or appurtenant to any warrant, option or other instrument that shall confer upon
the holder of such security the right to subscribe for or purchase or receive
from the Corporation any shares of its stock or any class or classes, whether or
not such shares shall be unissued shares, now or hereafter authorized, or shares
acquired by the Corporation after the issue thereof, and whether or not such
securities are issued for cash or services or property or by way of dividend or
otherwise, other than such right, if any, as the Board of Directors, in its sole
discretion, may from time to time determine. If the Board of Directors shall
offer to the holders of shares of stock of any class of the Corporation, or any
of them, any such shares of stock, options, warrants, instruments or other
securities of the Corporation, such offer shall not, in any way, constitute a
waiver or release of the right of the Board of Directors subsequently to dispose
of other securities of the Corporation without offering the same to said
holders.
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The shares of such classes shall have the following express terms:
DIVISION A
EXPRESS TERMS OF THE PREFERRED STOCK
(1) The Preferred Stock may be issued from time to time in one or more
series. All shares of Preferred Stock shall be of equal rank and shall be
identical with all other shares except in respect of the matters that may be
fixed by the Board of Directors as hereinafter provided, and each share of each
series shall be identical with all other shares of such series, except, if
dividends are to be cumulative, as to the date from which dividends are
cumulative. Subject to the provisions of Sections 2 and 3 of this Division,
which provisions shall apply to all Preferred Stock, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more series and
with respect to each such series prior to the issuance thereof to fix:
a) The number of shares constituting such series, including
the authority to increase or decrease such number, and the distinctive
designation of such series.
b) The dividend rate of the shares of such series, whether the
dividends shall be cumulative and, if so, the date from which they
shall be cumulative, and the relative rights of priority, if any, of
payment of dividends on shares of such series.
c) The right, if any, of the Corporation to redeem shares of
such series and the terms and conditions of such redemption including
the redemption price.
d) The rights of the shares in case of a voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation,
and the relative rights of priority, if any, of payment of shares of
such series.
e) The obligation, if any, of the Corporation to retire shares
of such series pursuant to a retirement or sinking fund or fund of a
similar nature and the terms and conditions of such obligation.
f) The terms and conditions, if any, upon which shares of such
series shall be convertible into or exchangeable for shares of stock of
any other class or classes of stock of the Corporation or other entity
or of any other series of Preferred Stock, including the price or
prices or the rate or rates of conversion or exchange and the terms of
adjustment, if any.
g) Any other rights, preferences or limitations of the shares
of such series as may be permitted by law.
The Board of Directors is authorized to adopt from time to time amendments to
the Articles of Incorporation fixing, with respect to each such series, the
matters described in clauses (a) through (g), inclusive, of this Section 1.
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(2) The Preferred Stock shall be senior to the Common Stock in payment
of dividends and payment in respect of liquidation or dissolution.
(3) The holders of Preferred Stock shall be entitled to one vote for
each share of such stock upon all matters presented to the shareholders; and,
except as otherwise required by law, the holders of Preferred Stock and the
holders of Common Stock shall vote together as one class on all matters.
DIVISION B
EXPRESS TERMS OF THE COMMON STOCK
The Common Stock shall be subject to the express terms of the Preferred Stock
and any series thereof and to the terms of Article EIGHTH. Each share of Common
Stock shall be equal to every other share of Common Stock and the holders
thereof shall be entitled to one vote for each share of such stock on all
questions presented to the shareholders.
FIFTH: Except as otherwise provided in these Articles of Incorporation or in the
Regulations, the holders of a majority of the outstanding shares are authorized
to take any action which, but for this provision, would require the vote or
other action of the holders of more than a majority of such shares; provided, no
action of shareholders can be taken except at a meeting called for that purpose.
SIXTH: Except as otherwise provided in these Articles of Incorporation, to the
extent permitted by law, the Corporation, by its Board of Directors, may deal in
its own shares (including the purchase or redemption of any issued shares) and
may issue options, rights or warrants, including any rights issued under a plan
that prohibits the holder of a specified number or percentage of the outstanding
shares from exercising rights or that requires certain directors to consent to
the redemption of such rights.
SEVENTH: No holder of shares of the Corporation shall be entitled to vote
cumulatively in the election of Directors of the Corporation.
EIGHTH: No person shall make a Control Share Acquisition without first obtaining
the prior authorization of the Corporation's shareholders at a special meeting
of shareholders called by the Board of Directors in accordance with this Article
EIGHTH.
(1) PROCEDURE. Any Person who proposes to make a Control Share
Acquisition shall deliver a notice ("Notice") to the Corporation at its
principal place of business that sets forth all of the following information:
a) The identity of the Person who is giving the Notice;
b) A statement that the Notice is given pursuant to this
Article EIGHTH;
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c) The number and class of shares of the Corporation owned,
directly or indirectly, by the Person who gives the Notice;
d) The range of voting power (as specified in Section
(6)(b)(1) of this Article EIGHTH) under which the proposed Control
Share Acquisition would, if consummated, fall;
e) A description in reasonable detail of the terms of the
proposed Control Share Acquisition; and
f) Representations, supported by reasonable information, that
the proposed Control Share Acquisition would be consummated if
shareholder approval is obtained and, if consummated, would not be
contrary to law and that the Person who is giving the Notice has the
financial capacity to make the proposed Control Share Acquisition.
(2) CALL OF SPECIAL MEETING OF SHAREHOLDERS. The Board of Directors of
the Corporation shall, within ten (10) days after receipt by the Corporation of
a Notice that complies with Section (1), call a special meeting of shareholders
to be held not later than fifty (50) days after receipt of the Notice by the
Corporation, unless the Person who delivered the Notice agrees to a later date,
to consider the proposed Control Share Acquisition; provided that the Board of
Directors shall have no obligation to call such a meeting if they make a
determination within ten (10) days after receipt of the Notice that (i) the
Notice was not given in good faith; (ii) the proposed Control Share Acquisition
would not be in the best interests of the Corporation and its shareholders or
(iii) the proposed Control Share Acquisition could not be consummated for
financial or legal reasons.
The Board of Directors may adjourn such special meeting of shareholders
if prior to such meeting the Corporation has received a Notice from any other
Person and the Board of Directors has determined that the Control Share
Acquisition proposed by such other Person, or a merger, consolidation or sale of
assets of the Corporation, should be presented to shareholders at an adjourned
meeting or at a special meeting held at a later date.
For purposes of making a determination that a special meeting of
shareholders should not be called pursuant to this Section (2), no such
determination shall be deemed void or voidable with respect to the Corporation
merely because one or more of its directors or officers who participated in
deliberations regarding such determination may be deemed to be other than
disinterested, if in any such case the material facts of the relationship giving
rise to a basis for self-interest are known to the directors and the directors,
in good faith reasonably justified by the facts, make such determination by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors constitute less than a quorum. For purposes of this
paragraph, "disinterested directors" shall mean directors whose material
contacts with the Corporation are limited principally to activities as a
director or shareholder. Persons who have material and
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recurring business or professional contacts with the Corporation shall not be
deemed to be "disinterested directors" for purposes of this provision. A
director shall not be deemed to be other than a "disinterested director" merely
because he would no longer be a director if the proposed Control Share
Acquisition were approved and consummated.
(3) NOTICE OF SPECIAL MEETING. The Corporation shall, as promptly as
practicable, give notice of the special meeting of shareholders called pursuant
to Section (2) to all shareholders of record as of the record date set for such
meeting. Such notice shall include or be accompanied by a copy of the Notice and
by a statement of the Corporation, authorized by the Board of Directors, of its
position or recommendation, or that it is taking no position or making no
recommendation, with respect to the proposed Control Share Acquisition.
(4) REQUIREMENTS FOR APPROVAL. The Person who delivered the Notice may
make the proposed Control Share Acquisition if both of the following occur:
a) The shareholders of the Corporation authorize such
acquisition at the special meeting of shareholders called pursuant to
Section (2), at which meeting a quorum is present, by the affirmative
vote of a majority of the Voting Stock represented at such meeting in
person or by proxy and by a majority of the portion of such Voting
Stock represented at such meeting in person or by proxy excluding the
votes of Interested Shares. A quorum shall be deemed to be present at
such special meeting if at least a majority of the issued and
outstanding Voting Stock, and a majority of such Voting Stock excluding
Interested Shares, are represented at such meeting in person or by
proxy.
b) Such acquisition is consummated, in accordance with the
terms so authorized, not later than three hundred sixty (360) days
following shareholder authorization of the Control Share Acquisition.
(5) VIOLATIONS OF RESTRICTION. Any Voting Stock issued or transferred
to any Person in violation of this Article EIGHTH shall hereinafter be called
"Excess Shares." In the event that any Person acquires Excess Shares, then, in
addition to any other remedies which the Corporation may have at law or in
equity as a result of such acquisition, the Corporation shall have the right to
treat the issuance or transfer of any such Excess Shares as null and void. In
the event the Corporation is not permitted to treat an issuance or transfer of
Excess Shares as null and void, such Excess Shares will be treated as the
equivalent of treasury shares of the Corporation and, as such, holders of Excess
Shares will hold such Excess Shares as agent of the Corporation and shall have
no right to exercise or receive the benefits of shareholder rights appurtenant
to such Excess Shares. In such event, the Corporation may redeem any or all
Excess Shares, arrange a sale to one or more purchasers who could acquire such
Excess Shares without violating this Article EIGHTH, or seek other appropriate
remedies. In addition, any Person who receives dividends, interest or any other
distribution with respect to Excess Shares shall hold the same as agent for the
Corporation and, following a permitted transfer, for the transferee thereof.
Notwithstanding the foregoing, any person who holds Excess Shares may
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transfer the same (together with any distributions thereon) to any Person who,
following such transfer, would not own shares in violation of this Article
EIGHTH. Upon such permitted transfer, the Corporation shall pay or distribute to
the transferee any distributions on the Excess Shares not previously paid or
distributed.
(6) DEFINITIONS. As used in this Article EIGHTH:
a) "Person" includes, without limitation, an individual, a
corporation (whether nonprofit or for profit), a partnership, an
unincorporated society or association, and two or more persons having a
joint or common interest.
b)(1) "Control Share Acquisition" means the acquisition,
directly or indirectly, by any Person, of shares of the Corporation
that, when added to all other shares of the corporation in respect of
which such Person, directly or indirectly, may exercise or direct the
exercise of voting power as provided in this paragraph, would entitle
such Person, immediately after such acquisition, directly or
indirectly, to exercise or direct the exercise of voting power of the
Corporation in the election of directors within any of the following
ranges of such voting power:
(i) One-fifth or more but less than one-third of such
voting power;
(ii) One-third or more but less than a majority of
such voting power; or
(iii) A majority of such voting power.
A bank, broker, nominee, trustee, or other Person who acquires shares
in the ordinary course of business for the benefit of others in good
faith and not for the purpose of circumventing this Article EIGHTH
shall, however, be deemed to have voting power only of shares in
respect of which such Person would be able to exercise or direct the
exercise of votes at a special meeting of shareholders called pursuant
to Section (2) of this Article EIGHTH without further instruction from
others. For purposes of this Article EIGHTH, the acquisition of
securities immediately convertible into shares of the Corporation with
voting power in the election of directors shall be treated as an
acquisition of such shares.
b)(2) The acquisition of any shares of the Corporation does
not constitute a Control Share Acquisition for the purposes of this
Article EIGHTH if the acquisition is consummated in any of the
following circumstances:
(i) By underwriters in good faith and not for the
purpose of circumventing this Article EIGHTH in connection
with any offering to the public of securities of the
Corporation;
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(ii) By bequest or inheritance, by operation of law
upon the death of any individual, or by any other transfer
without valuable consideration, including a gift, that is made
in good faith and not for the purpose of circumventing this
Article EIGHTH;
(iii) Pursuant to the satisfaction of a pledge or
other security interest created in good faith and not for the
purpose of circumventing this Article EIGHTH;
(iv) Pursuant to a merger, consolidation, combination
or majority share acquisition adopted or authorized by
shareholder vote in compliance with the provisions of Article
SEVENTH of these Articles of Incorporation and Sections
1701.78, 1701.79 or 1701.83 and Chapter 1704. of the Ohio
Revised Code if the Corporation is a party to the agreement of
merger, consolidation or acquisition, as the case may be; or
(v) Under such circumstances that the acquisition
does not result in the Person acquiring shares of the
Corporation being entitled, immediately thereafter and for the
first time, directly or indirectly, to exercise or direct the
exercise of voting power of the Corporation in the election of
directors within the range of one-fifth or more but less than
one-third of such voting power, or within any of the ranges of
voting power specified in Section (6)(b)(1)(i), (ii) or (iii)
which is higher than the range of voting power applicable to
such Person immediately prior to such acquisition.
The acquisition by any Person of shares of the Corporation in
a manner described under this Section (6)(b)(2) shall be deemed to be a
Control Share Acquisition authorized pursuant to this Article EIGHTH
within the range of voting power specified in Section (6)(b)(1)(i),
(ii) or (iii) that such Person is entitled to exercise after such
acquisition, provided that, in the case of an acquisition in a manner
described under Section (6)(b)(1)(i), (ii) or (iii), the transferor of
shares to such Person had previously obtained any authorization of
shareholders required under this Article EIGHTH in connection with such
transferor's acquisition of shares of the Corporation.
b)(3) The acquisition of shares of the Corporation in good
faith and not for the purpose of circumventing this Article EIGHTH from
any Person whose Control Share Acquisition had previously been
authorized by shareholders in compliance with this Article EIGHTH, or
from any Person whose previous acquisition of shares would have
constituted a Control Share Acquisition but for Section (6)(b)(2), does
not constitute a Control Share Acquisition for the purpose of this
Article EIGHTH unless such acquisition entitles any Person, directly or
indirectly, alone or with others, to exercise or direct the exercise of
voting power of the Corporation in the election of directors in excess
of the range of such voting power authorized pursuant to this Article
EIGHTH, or deemed to be so authorized under Section (6)(b)(2).
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c) "Interested Shares" means Voting Stock with respect to
which any of the following persons may exercise or direct the exercise
of the voting power:
(1) any Person whose Notice prompted the calling of a special
meeting of shareholders pursuant to Section (2);
(2) any officer of the Corporation elected or appointed by the
directors of the Corporation;
(3) any employee of the Corporation who is also a director of
the Corporation;
(4) any person that acquires such shares for valuable
consideration during the period beginning with the date of the
first public disclosure of a proposed Control Share
Acquisition of the Corporation or any proposed merger,
consolidation, or other transaction that would result in a
change in control of the Corporation or a transfer of all or
substantially all of its assets, and ending on the record date
established by the directors pursuant to this Article EIGHTH,
if either of the following applies: (i) The aggregate
consideration paid or given by the person who acquired the
shares, and any other persons acting in concert with the
person, for all such shares exceeds two hundred fifty thousand
dollars; (ii) The number of shares acquired by the person who
acquired the shares, and any other persons acting in concert
with the person, exceeds one-half of one per cent of the
outstanding shares of the corporation entitled to vote in the
election of directors; and
(5) any person that transfers such shares for valuable
consideration after the record date established pursuant to
this Article EIGHTH as to shares so transferred, if
accompanied by the voting power in the form of a blank proxy,
an agreement to vote as instructed by the transferee, or
otherwise.
(d) "Voting Stock" means all securities of the Corporation
entitled to vote generally in the election of directors, and, for
purposes of Sections (5) and (10) of this Article EIGHTH, shall mean
securities of the Corporation immediately convertible into securities
entitled to vote generally in the election of the directors.
(7) PROXIES. No proxy appointed for or in connection with the
shareholder authorization of a Control Share Acquisition pursuant to this
Article EIGHTH is valid if it provides that it is irrevocable. No such proxy is
valid unless it is sought, appointed, and received both (a) in accordance with
all applicable requirements of law and (b) separate and apart from the sale or
purchase, contract or tender for sale or purchase, or request or invitation for
tender for sale or purchase, of shares of the Corporation.
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(8) REVOCABILITY OF PROXIES. Proxies appointed for or in connection
with the shareholder authorization of a Control Share Acquisition pursuant to
this Article EIGHTH shall be revocable at all times prior to the obtaining of
such shareholder authorization, whether or not coupled with an interest.
(9) AMENDMENTS. Notwithstanding any other provisions of these Articles
of Incorporation or the Regulations of the Corporation or any provision of law
that might otherwise permit a lesser vote, but in addition to any affirmative
vote of the holders of any particular class or series of stock required by law,
the Articles of Incorporation or the Regulations of the Corporation, the
affirmative vote of the holders of at least eighty percent (80%) of the Voting
Stock, voting as a single class, shall be required to alter, amend or repeal
this Article EIGHTH or adopt any provisions in these Articles of Incorporation
or the Regulations of the Corporation which are inconsistent with the provisions
of this Article EIGHTH.
(10) LEGEND ON SHARE CERTIFICATES. Each certificate representing Voting
Stock of the Corporation shall contain the following legend:
"Transfer of the securities represented by this Certificate is
subject to the provisions of Article EIGHTH of the Corporation's
Articles of Incorporation as the same may be in effect from time to
time. Upon written request delivered to the Secretary of the
Corporation at its principal place of business, the Corporation will
mail to the holder of this Certificate a copy of such provisions
without charge within five (5) days after receipt of written request
therefor. By accepting this Certificate the holder hereof acknowledges
that it is accepting same subject to the provisions of said Article
EIGHTH as the same may be in effect from time to time and covenants
with the Corporation and each holder thereof from time to time to
comply with the provisions of said Article EIGHTH as the same may be in
effect from time to time."
NINTH: The provisions of Section 1701.831 of the Ohio Revised Code, as amended
from time to time, or any successor provision or provisions to said Section,
shall not apply with respect to any particular Control Share Acquisition, as
such is defined in said Section, regarding this Corporation so long as Article
EIGHTH of these Articles of Incorporation, as such Articles of Incorporation may
be amended from time to time, remains an Article of these Articles of
Incorporation and remains substantially in full force and effect, disregarding
any renumbering of such Article EIGHTH resulting from any amendment of these
Articles of Incorporation.
TENTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation which may be contained in
these articles of incorporation of a corporation organized under the laws of the
State of Ohio, in the manner now or hereafter prescribed by statute or these
Articles of Incorporation, and all rights conferred upon shareholders herein are
granted subject to this reservation.
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