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EXHIBIT 3.1
CONFORMED COPY Charter No. _____________
Approved ________________
Date ____________________
Fee: $35.00 (min)
CERTIFICATE OF AMENDMENT
by Shareholders to the Articles of Incorporation of
PVF CAPITAL CORP.
John R. Male, who is President, and Jeffrey N. Male, who is Secretary of the
above named Ohio corporation for profit do hereby certify that the annual
meeting of the shareholders of the Corporation was duly called, and included
among its purposes was the purpose of adopting this amendment, and was held on
October 19, 1998 at which meeting a quorum of the shareholders was present in
person or by proxy; and, by the affirmative vote of the holders of shares
entitling them to exercise 95.91% of the voting power of the Corporation, the
following resolution to amend the articles was adopted:
RESOLVED, Article FIFTH of the First Amended and Restated Articles of
Incorporation of PVF Capital Corp. is hereby amended to provide that the
aggregate number of shares of all classes of capital stock which the
Corporation has authority to issue is 16,000,000 shares, of which
15,000,000 shares are to be shares of common stock, $.01 par value per
share, and of which 1,000,000 shares are to be shares of serial preferred
stock, $.01 par value per share.
Except as expressly modified by the foregoing resolution, all terms and
provisions of Article FIFTH of the First Amended and Restated Articles of
Incorporation of PVF Capital Corp shall remain in full force and effect as
stated therein.
IN WITNESS WHEREOF, the above named officers, acting for and on the behalf
of the corporation, have hereto subscribed their names this 21st day of
October, 1998.
By: /s/ John R. Male
--------------------------
John R. Male, President
By: /s/ Jeffrey N. Male
--------------------------
Jeffrey N. Male, Secretary
NOTE: Ohio law does not permit one officer to sign in two capacities. Two
separate signatures are required, even if this necessitates the election of a
second officer before the filing can be made.
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FIRST AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PVF CAPITAL CORP.
FIRST: The name of the corporation is PVF Capital Corp. (herein the
"Corporation").
SECOND: The place in Ohio where the principal office of the Corporation
is located is 2618 North Moreland Boulevard, in the City of Cleveland, Cuyahoga
County.
THIRD: The purpose for which the Corporation is formed is to become a
savings bank holding company and to engage in any lawful act or activity for
which corporations may be formed under Chapter 1701 of the Revised Code of Ohio.
FOURTH: The number of directors constituting the initial board of
directors of the Corporation is six.
FIFTH: The aggregate number of shares of all classes of capital stock
which the Corporation has authority to issue is 6,000,000 shares, of which
5,000,000 shares are to be shares of common stock, $.01 par value per share, and
of which 1,000,000 are to be shares of serial preferred stock, $.01 par value
per share. The shares may be issued by the Corporation from time to time as
approved by the Board of Directors of the Corporation without the approval of
the stockholders except as otherwise provided in these Articles of Incorporation
or the rules of a national securities exchange, if applicable. The consideration
for the issuance of the shares shall be paid to or received by the Corporation
in full before their issuance and shall not be less than the par value per
share. The consideration for the issuance of the shares may be paid in whole or
in part, in real property, in tangible or intangible personal property, in labor
or services actually performed for the Corporation or in its formation, or as
otherwise permitted by Ohio law. In the absence of actual fraud in the
transaction, the judgment of the Board of Directors or the stockholders as the
case may be as to the value of such consideration shall be conclusive. Upon
payment of such consideration such shares shall be deemed to be fully paid and
nonassessable. In the case of a stock dividend, the part of the surplus of the
Corporation which is transferred to stated capital upon the issuance of shares
as a stock dividend shall be deemed to be the consideration for their issuance.
A description of the different classes and series (if any) of the
Corporation's capital stock, and a statement of the relative rights, preferences
and limitations of the shares of each class and series (if any) of capital
stock, are as follows:
A. COMMON STOCK. Except as provided in these Articles of Incorporation,
the holders of the common stock shall exclusively possess all voting power. Each
holder of shares of common stock shall be entitled to one vote for each share
held by such holders.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and sinking fund or retirement fund or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock and on any class or
series of stock entitled to participate therewith as to dividends, out of any
assets legally available for the payment of dividends, but only when and as
declared by the Board of Directors of the Corporation.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class having preference
over the
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common stock in any such event, the full preferential amounts to which they are
respectively entitled, the holders of the common stock and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets shall be entitled, after payment or provision for payment
of all debts and liabilities of the Corporation, including the payment of all
fees, taxes and other expenses incidental thereto, to receive the remaining
assets of the Corporation available for distribution, in cash or in kind.
Each share of common stock shall have the same relative rights,
preferences and limitations as, and shall be identical in all respects with, all
the other shares of common stock of the Corporation.
B. SERIAL PREFERRED STOCK. Except as provided in these Articles of
Incorporation, the Board of Directors of the Corporation is authorized, by
resolution or resolutions from time to time adopted, to further amend these
Articles to provide for the specific terms of serial preferred stock to be
issued in series and to fix and state the rights, preferences, limitations and
relative, participating, optional or other special rights of the shares of each
such series, and the qualifications, limitations or restrictions thereof. The
terms of shares of different series shall be identical except as to the
following rights and preferences, as to which there may be variations between
different series:
1. the distinctive serial designation and the number of shares
constituting such series;
2. the voting rights, full, conditional or limited, of shares of such
series;
3. the dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so, from
which date or dates, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
4. whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions upon which such
shares may be redeemed;
5. the amount or amounts payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
6. whether the shares of such series shall be entitled to the benefits
of a sinking or retirement fund to be applied to the purchase or redemption of
such shares, and, if so entitled, the amount of such fund and the manner of its
application, including the price or prices at which such shares may be redeemed
or purchased through the application of such funds;
7. whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or any other series of
the same or any other class or classes of stock of the Corporation and, if so
convertible or exchangeable, the conversion price or prices, or the rates or
rates of exchange, and the adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and conditions of such conversion
or exchange;
8. the price or other consideration for which the shares of such series
shall be issued;
9. restrictions, if any, on the issuance of shares of the same series
or any other class or series; and
10. any other designations, preferences, limitations or rights that are
now or hereafter permitted by the laws of the State of Ohio and are not
inconsistent with the provisions of this Paragraph B.
Each share of each series of serial preferred stock shall have the same
relative rights, preferences and limitations as, and shall be identical in all
respects with, all the other shares of capital stock of the Corporation of the
same series.
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SIXTH: By resolution adopted by the directors in the manner set forth
in division (E) of Section 1701.13 of the Revised Code of Ohio or its successor,
the Corporation shall indemnify or agree to indemnify:
1. Any person who was or is a party or is threatened to be made
a party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative,
other than an action by or in the right of the Corporation, by reason
of the fact that he is or was a director, officer, employee, or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, 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, had no reasonable cause to believe his
conduct was unlawful. 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,
create a presumption that the person did not act 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 reasonable cause to believe that his conduct was
unlawful; and
2. Any person who was or is a party or is threatened to be made
a party, to any threatened, pending, or completed action or suit 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 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 attorney's fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any of the
following:
a. Any claim, issue or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation unless, and only to the extent that the
court of common pleas or the court in which such action or suit was
brought determines upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court shall deem
proper;
b. Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code
of Ohio.
3. To the extent that a director, trustee, officer, employee, or
agent has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in subsections (1) and (2) of
this Article Sixth, or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the action, suit or proceeding.
4. Any indemnification under subsections (1) and (2) of this
Article Sixth, unless ordered by a court, shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee, officer,
employee, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (1) and
(2) of this Article Sixth. Such determination shall be made by the
directors of the Corporation in the manner set forth in division
(E)(4) of Section 1701.13 of the Revised Code of Ohio.
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SEVENTH: No stockholder of the Corporation shall have, as a matter of
right, the preemptive 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.
EIGHTH: The Corporation may from time to time, pursuant to
authorization by the board of directors of the Corporation and without action by
the stockholders, purchase or otherwise acquire shares of any class, bonds,
debentures, notes, scrip, warrants, obligations, evidences of indebtedness, or
other securities of the Corporation in such manner, upon such terms, and in such
amounts as the board of directors shall determine; subject, however, to such
limitations or restrictions, if any, as are contained in the express terms of
any class of shares of the Corporation outstanding at the time of the purchase
or acquisition in question or as are imposed by law.
NINTH: A. Notwithstanding any other provision of these Articles or the
Code of Regulations of the Corporation, no action required to be taken or which
may be taken at any annual or special meeting of stockholders of the Corporation
may be taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is specifically denied.
B. Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the chairman of the board, the
president, the board of directors by action at a meeting or a majority of the
board of directors acting without a meeting, and shall be called by the chairman
of the board, the president, or the secretary upon the written request of the
holders of 50% of all the shares outstanding and entitled to vote at the
meeting. Such written request shall state the purpose or purposes of the meeting
and shall be delivered at the principal executive office of the Corporation
addressed to the president or the secretary.
C. There shall be no cumulative voting by stockholders of any class or
series in the election of directors of the Corporation.
D. Meetings of stockholders may be held within or without the State of
Ohio, as the Code of Regulations may provide.
E. Nominations for the election of directors and proposals for any new
business to be taken up at any annual or special meeting of stockholders may be
made by the board of directors of the Corporation or by any stockholder of the
Corporation entitled to vote generally in the election of directors. In order
for a stockholder of the Corporation to make any such nominations and/or
proposals, he or she shall give notice thereof in writing, delivered or mailed
by first class United States mail, postage prepaid, to the Secretary of the
Corporation not less than thirty days nor more than sixty days prior to any such
meeting; provided, however, that if less than forty days' notice of the meeting
is given to stockholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of the
tenth day following the day on which notice of the meeting was mailed to
stockholders. Each such notice given by a stockholder with respect to
nominations for the election of directors shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee. In addition, the stockholder making
such nomination shall promptly provide any other information reasonably
requested by the Corporation.
F. Each such notice given by a stockholder to the Secretary with
respect to business proposals to bring before a meeting shall set forth in
writing as to each matter: (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting; (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business; (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder; and (iv) any
material interest of the stockholder in such business. Notwithstanding anything
in the Articles of Incorporation or Code of Regulations to the contrary, no
business shall be conducted at the meeting except in accordance with the
procedures set forth in this Article Ninth.
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G. The Chairman of the annual or special meeting of stockholders may,
if the facts warrant, determine and declare to such meeting that a nomination or
proposal was not made in accordance with the foregoing procedure, and, if he
should so determine, he shall so declare to the meeting and the defective
nomination or proposal shall be disregarded and laid over for action at the next
succeeding adjourned, special or annual meeting of the stockholders taking place
thirty days or more thereafter. This provision shall not require the holding of
any adjourned or special meeting of stockholders for the purpose of considering
such defective nomination or proposal.
TENTH: The number of directors of the Corporation shall be such number,
not less than five nor more than 15 (exclusive of directors, if any, to be
elected by holders of preferred stock of the Corporation, voting separately as a
class), as shall be provided from time to time in or in accordance with the
Bylaws of the Board of Directors, provided that no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director, and provided further that no action shall be taken to decrease or
increase the number of directors from time to time unless at least two-thirds of
the directors then in office shall concur in said action. Vacancies in the board
of directors of the Corporation and newly created directorships shall be filled
by a vote of two-thirds of the directors then in office, whether or not a
quorum, and any director so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of the class to which the
director has been chosen expires and when the director's successor is elected
and qualified. Directors shall not be required to own any shares of the
Corporation's common stock and need not be residents of any particular state,
country or other jurisdiction.
The board of directors of the corporation shall be divided into two
classes, which shall be designated Class I and Class II, if the board of
directors consists of six, seven or eight members, or into three classes, which
shall be designated Class I, Class II and Class III, if the board of directors
consists of nine or more members. Such classes shall consist of no fewer than
three members each. The members of each class shall be elected for a term of two
years if the board of directors consists of six, seven or eight members, or
three years if the board of directors consists of nine or more members, and
until their successors are elected and qualified. Such classes shall be as
nearly equal in number as the then total number of directors constituting the
entire board of directors shall permit, with the terms of office of all members
of one class expiring each year. Should the number of directors not be equally
divisible by three, the excess director or directors shall be assigned to
Classes I or II as follows: (i) if there shall be an excess of one directorship
over a number equally divisible by three, such extra directorship shall be
classified in Class I; and (ii) if there be an excess of two directorships over
a number equally divisible by three, one shall be classified in Class I and the
other in Class II.
At the first annual meeting of stockholders, directors of Class I shall
be elected to hold office for a term expiring at the second or third succeeding
annual meeting thereafter, depending on whether the board of directors consists
of less than nine members or nine or more members. At the second annual meeting
of stockholders, directors of Class II shall be elected to hold office for a
term expiring at the second or third succeeding annual meeting thereafter,
depending on whether the board of directors consists of less than nine members
or nine or more members. If the board of directors consists of nine or more
members, at the third annual meeting of stockholders, directors of Class III
shall be elected to hold office for a term expiring at the third succeeding
annual meeting thereafter. Thereafter, at each succeeding annual meeting,
directors of each class shall be elected for two or three year terms, depending
on whether the board of directors is classified into two or three classes,
respectively. Notwithstanding the foregoing, the director whose term shall
expire at any annual meeting shall continue to serve until such time as his
successor shall have been duly elected and shall have qualified unless his
position on the board of directors shall have been abolished by action taken to
reduce the size of the board of directors prior to said meeting.
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Should the number of directors of the Corporation be reduced, the
directorship(s) eliminated shall be allocated among classes as appropriate so
that the number of directors in each class is as specified above. The board of
directors shall designate, by the name of the incumbent(s), the position(s) to
be abolished. Notwithstanding the foregoing, no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director. Should the number of directors of the Corporation be increased, the
additional directorships shall be allocated among classes as appropriate so that
the number of directors in each class is as specified above, and, if such
increase increases the number of directors to nine or more, the new and existing
directorships may be reallocated as appropriate so as to create a third class of
directors, with the number of directors in each class as specified above.
ELEVENTH: Notwithstanding any other provision of these Articles or the
Code of Regulations of the Corporation, no director of the Corporation may be
removed from office at any time, unless for cause and by the affirmative vote of
the holders of at least 80 percent of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the stockholders
called for that purpose. In the case of a removal of a director by the
stockholders, a new director may be elected at the same meeting of stockholders
to hold office for the remainder of the term of the removed director. Failure by
the stockholders to fill the unexpired term of a removed director at such
meeting of stockholders shall be deemed to create a vacancy in the board of
directors, which shall be filled by the Board of Directors as provided in
Article Tenth.
TWELFTH: A director shall perform his duties as a director, including
his duties as a member of any committee of the directors upon which he may
serve, in good faith, in a manner he reasonably believes to be in or not opposed
to the best interests of the Corporation, and with the care that an ordinarily
prudent person in a like position would use under similar circumstances. In
performing his duties, a director is entitled to rely on information, opinions,
reports, or statements, including financial statements and other financial data,
that are prepared or presented by one or more directors, officers, or employees
of the Corporation, counsel, public accountants, or other persons as to matters
that the director reasonably believes are within the person's professional or
expert competence, or a committee of the directors upon which he does not serve.
A director shall not be found to have violated his duties as described
in this Article Twelfth, unless it is proved by clear and convincing evidence
that the director has not acted in good faith, in a manner he reasonably
believes to be in or not opposed to the best interests of the Corporation, or
with the care that an ordinarily prudent person in a like position would use
under similar circumstances, in any action brought against a director, including
actions involving or affecting any of the following: (a) a change or potential
change in control of the Corporation, including a determination to resist a
change or potential change in control made pursuant to division (F)(7) of
section 1701.13 of the Revised Code of Ohio; (b) a termination or potential
termination of his service to the Corporation as a director; or (c) his service
in any other position or relationship with the Corporation.
A director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause reliance on
information, opinions, reports, or statements that are prepared or presented by
the persons described above to be unwarranted. A director shall be liable in
damages for any action he takes or fails to take as a director only if it is
proved by clear and convincing evidence in a court of competent jurisdiction
that his action or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the Corporation or undertaken with reckless
disregard for the best interests of the Corporation. Nothing contained in this
Article Twelfth shall affect the liability of directors under Section 1701.95 of
the Revised Code of Ohio or limit relief available under Section 1701.60 of the
Revised Code of Ohio.
For purposes of this Article Twelfth, a director, in determining what
he reasonably believes to be in the best interests of the Corporation shall
consider the interests of the Corporation's shareholders and, in his discretion,
may consider any of the following: (a) the interests of the Corporation's
employees, suppliers, creditors, and customers; (b) the economy of the state and
nation; (c) community and societal considerations; and (d) the long-term as well
as short-term interests of the Corporation and its shareholders, including the
possibility that these interests may be best served by the continued
independence of the Corporation.
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Nothing contained herein affects the duties of either of the following:
(a) a director who acts in any capacity other than his capacity as a director;
or (b) a director of a corporation that does not have issued and outstanding
shares that are listed on a national securities exchange or are regularly quoted
in an over-the-counter market by one or more members of a national or affiliated
securities association, who votes for or assents to any action taken by the
directors of the corporation that, in connection with a change in control of the
corporation, directly results in the holder or holders of a majority of the
outstanding shares of the corporation receiving a greater consideration for
their shares than other shareholders.
THIRTEENTH: A. THREE YEAR PROHIBITION. For a period of three years from
the effective date of the completion of the conversion of Park View Federal
Savings Bank (the "Bank") from mutual to stock form, no person shall directly or
indirectly offer to acquire or acquire the beneficial ownership of more than 10%
of any class of equity security of the Corporation, unless such offer or
acquisition shall have been approved in advance by a two-thirds vote of the
Continuing Directors, as defined in Article Fourteenth below, or unless such 10%
beneficial ownership shall have resulted solely from the issuance of the
Corporation's common stock to a former 10% stockholder of the Bank in connection
with the reorganization of the Bank into the holding company form of ownership,
pursuant to which the Bank will become a wholly owned subsidiary of the
Corporation. In addition, for a period of three years from the completion of the
conversion of the Bank from mutual to stock form, and notwithstanding any
provision to the contrary in these Articles or the Code of Regulations of the
Corporation, where any person directly or indirectly acquires beneficial
ownership of more than 10% of any class of equity security of the Corporation in
violation of this Article Thirteenth (a "10% Stockholder"), the securities
beneficially owned in excess of 10% shall not be counted as shares entitled to
vote, shall not be voted by any person or counted as voting shares in connection
with any matter submitted to the shareholders for a vote, and shall not be
counted as outstanding for purposes of determining a quorum or the affirmative
vote necessary to approve any matter submitted to the shareholders for a vote.
B. DEFINITIONS. The term "person" means 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 acting in concert formed for the purpose of acquiring, holding or
disposing of securities of the Corporation. The term "acquire" includes every
type of acquisition, whether effected by purchase, exchange, operation of law or
otherwise. The term "offer" includes every offer to buy or otherwise acquire,
solicitation of an offer to sell, tender offer for or request for invitation for
tenders of, a security or interest in a security for value. The term "acting in
concert" includes (1) knowing participation in a joint activity or conscious
parallel action towards a common goal whether or not pursuant to an express
agreement and (2) a combination or pooling of voting or other interests in the
Corporation's outstanding shares for a common purpose pursuant to any contract,
understanding, relationship, agreement or other arrangement, whether written or
otherwise. The term "beneficial ownership" shall have the meaning defined in
Rule 13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on the date of filing these articles.
C. EXCLUSION FOR EMPLOYEE BENEFIT PLANS, DIRECTORS, OFFICER, EMPLOYEE
AND CERTAIN PROXIES. The restrictions contained in this Article Thirteenth shall
not apply to (1) any underwriter or member of an underwriting or selling group
involving a public sale or resale of securities of the Corporation or a
subsidiary thereof; provided, however, that upon completion of the sale or
resale of such securities, no such underwriter or member of such selling group
is a beneficial owner of more than 10% of any class of equity security of the
Corporation; (2) any proxy granted to one or more Continuing Directors by a
shareholder of the Corporation; or (3) any employee benefit plans of the
Corporation or a subsidiary thereof. In addition, the Continuing Directors, the
officers and employees of the Corporation and its subsidiaries, the directors of
subsidiaries of the Corporation, the employee benefit plans of the Corporation
and its subsidiaries, entities organized or established by the Corporation or
any subsidiary thereof pursuant to the terms of such plans and trustees and
fiduciaries with respect to such plans acting in such capacity shall not be
deemed to be a group with respect to their beneficial ownership of voting stock
of the Corporation solely by virtue of their being directors, officers or
employees of the Corporation or a subsidiary thereof or by virtue of the
Continuing Directors, the officers and employees of the Corporation and its
subsidiaries and the directors of subsidiaries of the Corporation being
fiduciaries
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or beneficiaries of an employee benefit plan of the Corporation or a subsidiary
of the Corporation. Notwithstanding the foregoing, no director, officer or
employee of the Corporation or any of its subsidiaries, or group of any of them,
shall be exempt from the provisions of this Article Thirteenth of these
Articles, should any such person or group become a beneficial owner of more than
10% of any class of equity security of the Corporation.
D. DETERMINATIONS. A majority of the Continuing Directors shall have
the power to construe and apply the provisions of this Article Thirteenth and to
make all determinations necessary or desirable to implement such provisions,
including but not limited to matters with respect to (a) the number of shares
beneficially owned by any person; (b) whether a person has an agreement,
arrangement or understanding with another as to the matters referred to in the
definition of beneficial ownership; (c) the application of any other definition
or operative provision of this Article Thirteenth to the given facts; or (d) any
other matter relating to the applicability or effect of this Article Thirteenth.
Any constructions, applications or determinations made by the Continuing
Directors, as defined below, pursuant to this Article Thirteenth 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 shareholders.
FOURTEENTH: The shareholder vote required to approve a Business
Combination (as hereinafter defined) shall be as set forth in this Article
Fourteenth, in addition to any other requirements under applicable law.
A. (1) Except as otherwise expressly provided in this Article
Fourteenth, the affirmative vote of the holders of (i) at least 80% of
the outstanding shares entitled to vote thereon (and, if any class or
series of shares is entitled to vote thereon separately, the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of each such class or series) and (ii) a majority of
the outstanding shares entitled to vote thereon not including shares
deemed beneficially owned by a Related Person (as hereinafter defined)
shall be required in order to authorize any of the following:
(a) any merger, share exchange or consolidation of the
Corporation with or into a Related Person;
(b) any sale, lease, exchange, transfer or other
disposition, including without limitation, a mortgage, or any
other security device, of all or any Substantial Part (as
hereinafter defined) of the assets of the Corporation (including,
without limitation, any voting securities of a subsidiary) or of
a subsidiary to a Related Person;
(c) any merger or consolidation of a Related Person with or
into the Corporation or a subsidiary;
(d) any sale, lease, exchange, transfer or other
disposition, including without limitation, a mortgage, or any
other capital device, of all or any Substantial Part of the
assets of a Related Person to the Corporation or a subsidiary;
(e) the issuance of any securities of the Corporation or a
subsidiary to a Related Person;
(f) the acquisition by the Corporation or a subsidiary of
any securities of a Related Person;
(g) any reclassification of the common stock of the
Corporation, or any recapitalization involving the common stock
of the Corporation; and
(h) any agreement, contract or other arrangement providing
for any of the transactions described in this Paragraph A.
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(2) Such affirmative vote shall be required notwithstanding any
other provision of these Articles, any provision of law, or any
agreement with any national securities exchange or automated quotation
system which might otherwise permit a lesser vote or no vote.
(3) The term "Business Combination" as used in this Article
Fourteenth shall mean any transaction which is referred to in any one
or more of paragraphs (1)(a) through (1)(h) of this Article
Fourteenth.
B. The provisions of Paragraph (A) of this Article shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote as is required by any other provision
of these Articles, any provisions of law or any agreement with any federal
regulatory agency, national securities exchange or automated quotation system,
if the Business Combination shall have been approved by at least two-thirds of
the Continuing Directors (as hereinafter defined); provided, however, that such
approval shall be effective only if obtained at a meeting at which a Continuing
Director Quorum (as hereinafter defined) is present.
C. For the purpose of this Article Fourteenth the following definitions
apply:
(1) The term "Related Person" shall mean (a) any individual,
corporation, partnership or other person or entity which together with
its "affiliates" (as that term is defined in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934)
"beneficially owns" (as that term is defined in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of
1934) in the aggregate 10% or more of the outstanding shares of the
common stock of the Corporation; and (b) any "affiliate" (as that term
is defined in Rule 12b-2 under the Securities Exchange Act of 1934) of
any such individual, corporation, partnership or other person or
entity. Without limitation, any shares of the common stock of the
Corporation which any Related Person has the right to acquire pursuant
to any agreement, upon exercise of conversion rights, warrants or
options or otherwise shall be deemed "beneficially owned" by such
Related Person.
(2) The term "Substantial Part" shall mean more than 25 percent
of the total assets of the Corporation, as of the end of its most
recent fiscal year ending prior to the time the determination is made.
(3) The term "Continuing Director" shall mean any member of the
board of directors of the Corporation who is unaffiliated with a
Related Person and was a member of the board of directors prior to the
time that the Related Person became a Related Person, and any
successor of a Continuing Director who is recommended to succeed a
Continuing Director by a majority of Continuing Directors then on the
board of directors.
(4) The term "Continuing Director Quorum" shall mean at least
two-thirds of the Continuing Directors capable of exercising the
powers conferred on them.
D. In addition to Paragraphs (A) through (C) of this Article
Fourteenth, the Ohio Control Share Acquisition Act, appearing at Section
1701.831 of the Revised Code of Ohio, shall apply to the Corporation.
FIFTEENTH: The Code of Regulations may be made, repealed, altered,
amended or rescinded by the stockholders of the Corporation by the vote of the
holders of not less than two-thirds of the voting power of the Corporation
entitled to vote at a meeting of stockholders called for that purpose.
SIXTEENTH: The Corporation reserves the right to repeal, alter, amend
or rescind any provision contained in these Articles in the manner now or
hereafter prescribed by law upon the affirmative vote of at least a majority of
the voting power of the Corporation, and all rights conferred on stockholders
herein are granted subject to this reservation.
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Notwithstanding the foregoing, the provisions of Articles Fourth, Sixth, Ninth,
Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth and this Article
Sixteenth of these Articles may not be repealed, replaced, altered, amended or
rescinded in any respect unless the same is approved by the affirmative vote of
the holders of not less than 80 percent of the voting power of the Corporation
entitled to vote at a meeting of stockholders called for that purpose (provided
that notice of such proposed adoption, repeal, replacement, alteration,
amendment or recision is included in the notice of such meeting); except that
such repeal, alteration, amendment or rescission may be made by the affirmative
vote of the holders of a majority of the outstanding shares of capital stock of
the Corporation entitled to vote at a meeting of stockholders (considered for
this purpose as a single class) if the same is first approved by a majority of
the Continuing Directors, as defined in Article Fourteenth of these Articles.
IN WITNESS WHEREOF, the undersigned hereby declare and certify that the
facts herein stated are true, and accordingly have hereunto signed their names
this 26th day of July, 1994.
/s/ John R. Male
-----------------------------
John R. Male
President
/s/ Jeffrey N. Male
-----------------------------
Jeffrey N. Male
Secretary
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