AMENDED
AND RESTATED ARTICLES OF INCORPORATION
OF
BANNER
CORPORATION
Pursuant to the provisions of Title 23B
of the Revised Code of Washington ("RCW") (the Washington Business Corporation
Act), the following shall constitute the Articles of Incorporation of Banner
Corporation, a Washington corporation:
ARTICLE
I.
Name
. The
name of the corporation is Banner Corporation (the "corporation").
ARTICLE
II.
Duration
. The
duration of the corporation is perpetual.
ARTICLE
III.
Purpose and
Powers
. The nature of the business and the objects and
purposes to be transacted, promoted or carried on by the corporation are to
engage in the activities of a bank holding company and in any other lawful act
or business for which corporations may be organized under the Washington
Business Corporation Act (as now in existence or as may hereafter be amended,
the "WBCA").
ARTICLE
IV.
Capital
Stock
. The total number of shares of all classes of capital
stock which the corporation has authority to issue is 200,500,000, of which
200,000,000 shall be common stock of par value of $0.01 per share, and of which
500,000 shall be serial preferred stock of par value $0.01 per
share. The shares may be issued from time to time as authorized by
the board of directors without further approval of the shareholders, except to
the extent that such approval is required by governing law, rule or
regulation. The consideration for the issuance of the shares shall be
paid in full before their issuance and shall not be less than the stated par
value per share. Upon payment of such consideration such shares shall
be deemed to be fully paid and nonassessable. Upon authorization by
its Board of directors, the corporation may issue its own shares in exchange for
or in conversion of its outstanding shares or distribute its own shares, pro
rata to its shareholders or the shareholders of one or more classes or series,
to effectuate stock dividends or splits, and any such transaction shall not
require consideration.
Except as expressly provided by
applicable law, these Articles of Incorporation or by any resolution of the
board of directors designating and establishing the terms of any series of
preferred stock, no holders of any class or series of capital stock shall have
any right to vote as a separate class or series or to vote more than one vote
per share. The shareholders of the corporation shall not be entitled
to cumulative voting in any election of directors.
A description of the different classes
and series (if any) of the corporation's capital stock and a statement of the
designations, and 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
. On matters on which holders of common stock are
entitled to vote, each holder of shares of common stock shall be entitled to one
vote for each share held by such holder.
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 of sinking fund, 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.
In the event of any liquidation,
dissolution or winding up of the corporation, the holders of the common stock
(and the holders of any class or series of stock entitled to participate with
the common stock in the distribution of assets) shall be entitled to receive, in
cash or in kind, the assets of the corporation available for distribution
remaining after: (i) payment or provision for payment of the
corporation's debts and liabilities; (ii) distributions or provision for
distributions in settlement of its liquidation account; and (iii) distributions
or provision for distributions to holders of any class or series of stock having
preference over the common stock in the liquidation, dissolution or winding up
of the corporation. Each share of common stock shall have the same
relative rights as and be identical in all respects with all the other shares of
common stock.
B.
Serial Preferred
Stock
. The board of directors of the corporation is authorized
by resolution or resolutions from time to time adopted to provide for the
issuance of preferred stock in series and to fix and state the voting powers,
designations, preferences and relative, participating, optional or other special
rights of the shares of each such series and the qualifications, limitations and
restrictions thereof, including, but not limited to, determination of any of the
following:
(a) The distinctive serial
designation and the number of shares constituting such series;
(b) The dividend rate 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;
(c) The voting powers, full
or limited, if any, of shares of such series;
(d) Whether the shares of
such series shall be redeemable and, if so, the price(s) at which, and the terms
and conditions on which, such shares may be redeemed;
(e) The amount(s) payable
upon the shares of such series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the corporation;
(f) Whether the shares or
such series shall be entitled to the benefit 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(s) at
which such shares may be redeemed or purchased through the application of such
fund;
(g) Whether the shares of
such series shall be convertible into, or exchangeable for, shares of any other
class or classes or of 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(s), or the rate 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;
(h) The price or other
consideration for which the shares of such series shall be issued;
and
(i) Whether the shares of
such series which are redeemed or converted shall have the status of authorized
but unissued shares of serial preferred stock and whether such shares may be
reissued as shares of the same or any other series of serial preferred
stock.
Each share of each series of preferred
stock shall have the same relative rights as and be identical in all respects
with all other shares of the same series.
ARTICLE
V.
Preemptive
Rights
. Holders of the capital stock of the corporation shall
not be entitled to preemptive rights with respect to any shares of the
corporation which may be issued.
ARTICLE
VI.
Merger, Share
Exchange, Sale of Assets and Dissolution.
A merger, share
exchange, sale of all or substantially all of the corporation's assets, or
dissolution must be approved by the affirmative vote of holders of a majority of
the outstanding shares entitled to vote thereon, or, if separate voting by
voting groups is required, then by not less than the affirmative vote of the
holders of a majority of the outstanding shares entitled to be cast by that
voting group.
ARTICLE
VII.
Directors
.
A.
Number
. The number of
directors of the corporation shall be such number, not less than 5 nor more than
25 (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; provided, however, 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.
B.
Classified
Board
. The board of directors shall be divided into three
groups, with each group containing one-third of the total number of directors,
or as near as may be. The terms of the directors in the first group
shall expire at the first annual shareholders' meeting following their election,
the terms of the second group shall expire at the second shareholders' meeting
following their election, and the terms of the third group shall expire at the
third annual shareholders' meeting following their election. At each
annual shareholders' meeting held thereafter, directors shall be chosen for a
term of three years to succeed those whose terms expire.
C.
Vacancies
. Vacancies
in the board of directors of the corporation, however caused, 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.
ARTICLE
VIII.
Removal of
Directors
. Notwithstanding any other provisions of these Articles of
Incorporation or the corporation's Bylaws (and notwithstanding the fact that
some lesser percentage may be specified by law, these Articles of Incorporation
or the corporation's Bylaws), any director or the entire Board of directors may
be removed only for cause and only by the affirmative vote of the holders of at
least 80% of the total votes eligible to be cast at a legal meeting called
expressly for such purpose. Notwithstanding the foregoing, whenever
the holders of any one or more series of preferred stock of the corporation
shall have the right, voting separately as a class, to elect one or more
directors of the corporation, the preceding provisions of this Article VIII
shall not apply with respect to the director or directors elected by such
holders of preferred stock.
ARTICLE
IX.
Registered Office
and Agent
. The registered office of the corporation shall be
located at 10 South First Avenue, Walla Walla, Washington 99362. The
initial registered agent of the corporation at such address shall be Gary
Sirmon.
ARTICLE
X.
Notice for
Shareholder Nominations and Proposals
.
A. Nominations
for the election of directors and proposals for any new business to be taken up
at any annual or special meeting of shareholders may be made by the board of
directors of the corporation or by any shareholder of the corporation entitled
to vote generally in the election of directors. In order for a
shareholder 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 thirty-one days' notice of the meeting is
given to shareholders, 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
shareholders. Each such notice given by a shareholder with respect to
nominations for 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 nominees,
(iii) the number of shares of stock of the corporation which are beneficially
owned by each such nominee, (iv) such other information as would be required to
be included in a proxy statement soliciting proxies for the election of the
proposed nominee pursuant to Regulation 14A of the General Rules and Regulations
of the Securities Exchange Act of 1934, including, without limitation, such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director, if elected, and (v) as to the shareholder giving such
notice (a) his name and address as they appear on the corporation's books and
(b) the class and number of shares of the corporation which are beneficially
owned by such shareholder. In addition, the shareholder making such
nomination shall promptly provide any other information reasonably requested by
the corporation.
B. Each
such notice given by a shareholder 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 shareholder proposing such business; (iii) the class
and number of shares of the corporation which are beneficially owned by the
shareholder; and (iv) any material interest of the shareholder in such
business. Notwithstanding anything in this Certificate to the
contrary, no business shall be conducted at the meeting except in accordance
with the procedures set forth in this Article.
C. The
Chairman of the annual or special meeting of shareholders may, if the facts
warrant, determine and declare to the meeting that a nomination or proposal was
not made in accordance with the foregoing procedure, and, if the Chairman should
so determine, the Chairman 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 shareholders taking place
thirty days or more thereafter. This provision shall not require the
holding of any adjourned or special meeting of shareholders for the purpose of
considering such defective nomination or proposal.
ARTICLE
XI.
Approval of
Certain Business Combinations
. The shareholder vote required to approve
Business Combinations (as hereinafter defined) shall be as set forth in this
section.
A. (1) Except
as otherwise expressly provided in this Article XI, 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 80% of the outstanding shares of
each such class or series), and (ii) at least 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 to authorize any
of the following:
(a) any merger 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 of the
corporation;
(d) any sale, lease, exchange,
transfer or other disposition of all or any Substantial Part of the assets of a
Related Person to the corporation or a subsidiary of the
corporation;
(e) the issuance of any securities of
the corporation or a subsidiary of the corporation to a Related
Person;
(f) the acquisition by the corporation
or a subsidiary of the corporation 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 Article
XI.
(2) Such
affirmative vote shall be required notwithstanding any other provision of these
Articles of Incorporation, any provision of law, or any agreement with any
regulatory agency or national securities exchange which might otherwise permit a
lesser vote or no vote.
(3) The
term "Business Combination" as used in this Article XI shall mean any
transaction which is referred to in any one or more of subparagraphs (a) through
(i) above.
B. The
provisions of Part A of this Article XI shall not be applicable to any
particular Business Combination, which shall require only such affirmative vote
as is required by any other provision of these Articles of Incorporation, any
provision of law, or any agreement with any regulatory agency or national
securities exchange, if such particular Business Combination shall have been
approved by two-thirds of the Continuing Directors (as hereinafter defined);
provided,
however
, that such approval shall only be effective if obtained at a
meeting at which a Continuing Director Quorum (as hereinafter defined) is
present.
C. For
the purposes of this Article XI the following definitions apply:
(1) The
term "Related Person" shall mean and include (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
Act of 1934) in the aggregate 10% or more of the outstanding shares of the
common stock of the corporation (excluding tax-qualified benefit plans 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, or upon exercise or 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% of the total assets of the
corporation as of the end of its most recent fiscal year prior to when 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 the Related Person and was a member of
the board of directors prior to the time the Related Person became a Related
Person, and any successor of a Continuing Director who is unaffiliated with the
Related Person and 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 two-thirds of the Continuing
Directors capable of exercising the powers conferred on them.
ARTICLE
XII.
Evaluation of
Business Combinations
. In connection with the exercise of its
judgment in determining what is in the best interests of the corporation and of
the shareholders, when evaluating a Business Combination (as defined in Article
XI) or a tender or exchange offer, the board of directors of the corporation, in
addition to considering the adequacy of the amount to be paid in connection with
any such transaction, shall consider all of the following factors and any other
factors which it deems relevant: (i) the social and economic effects of the
transaction on the corporation and its subsidiaries, employees, depositors, loan
and other customers, creditors and other elements of the communities in which
the corporation and its subsidiaries operate or are located; (ii) the business
and financial condition and earnings prospects of the acquiring person or
entity, including, but not limited to, debt service and other existing financial
obligations, financial obligations to be incurred in connection with the
acquisition and other likely financial obligations of the acquiring person or
entity and the possible effect of such conditions upon the corporation and its
subsidiaries and the other elements of the communities in which the corporation
and its subsidiaries operate or are located; and (iii) the competence,
experience, and integrity of the acquiring person or entity and its or their
management.
ARTICLE
XIII.
Limitation of
Directors' Liability
. To the fullest extent permitted by the
WBCA, a director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for conduct as a director,
except for liability of the director for acts or omissions that involve: (i)
intentional misconduct by the director; (ii) a knowing violation of law by the
director; (iii) conduct violating RCW Section 23B.08.310 (relating to unlawful
distributions by the corporation); or (iv) any transaction from which the
director will personally receive a benefit in money, property or services to
which the director is not legally entitled. If the WBCA is amended in
the future to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the full extent permitted by the
WBCA, as so amended,
without
any requirement or further action by shareholders. An amendment or
repeal of this Article XIII shall not adversely affect any right or protection
of a director of the corporation existing at the time of such amendment or
repeal.
ARTICLE
XIV.
Indemnification
. The
corporation shall indemnify and advance expenses to its directors, officers,
agents and employees as follows:
A.
Directors and
Officers
. In all circumstances and to the full extent
permitted by the WBCA, the corporation shall indemnify any person who is or was
a director, officer or agent of the corporation and 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 and
whether formal or informal (including an action by or in the right of the
corporation), by reason of the fact that he is or was an agent of the
corporation, against expenses, judgments, fines, and amounts paid in settlement
and incurred by him in connection with such action, suit or
proceeding. However, such indemnity shall not apply to: (a) acts or
omissions of the director or officer finally adjudged to violate law; (b)
conduct of the director or officer finally adjudged to violate RCW Section
23B.08.310 (relating to unlawful distributions by the corporation), or (c) any
transaction with respect to which it was finally adjudged that such director and
officer personally received a benefit in money, property, or services to which
the director was not legally entitled. The corporation shall advance
expenses incurred in a proceeding for such persons pursuant to the terms set
forth in a separate directors' resolution or contract.
B.
Implementation
. The
board of directors may take such action as is necessary to carry out these
indemnification and expense advancement provisions. It is expressly
empowered to adopt, approve and amend from time to time such Bylaws,
resolutions, contracts or further indemnification and expense advancement
arrangements as may be permitted by law, implementing these
provisions. Such Bylaws, resolutions, contracts, or further
arrangements shall include, but not be limited to, implementing the manner in
which determinations as to any indemnity or advancement of expenses shall be
made.
C.
Survival of Indemnification
Rights
. No amendment or repeal of this Article XIV shall apply
to or have any effect on any right to indemnification provided hereunder with
respect to acts or omissions occurring prior to such amendment or
repeal.
D.
Service for Other
Entities
. The indemnification and advancement of expenses
provided under this Article XIV shall apply to directors, officers, employees,
or agents of the corporation for both (a) service in such capacities for the
corporation, and (b) service at the corporations's request as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise. A person is considered to be serving an employee benefit
plan at the corporation's request if such person's duties to the corporation
also impose duties on, or otherwise involve services by, the director to the
plan or to participants in or beneficiaries of the plan.
E.
Insurance
. The
corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, or agent of another corporation, partnership, joint venture, trust or
other enterprise against liability asserted against him and incurred by him in
such capacity or arising out of his status as such, whether or not the
corporation would have had the power to indemnify him against such liability
under the provisions of this bylaw and the WBCA.
F.
Other
Rights
. The indemnification provided by this section shall not
be deemed exclusive of any other right to which those indemnified may be
entitled under any other bylaw, agreement, vote of shareholders, or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such an office, and
shall continue as to a person who has ceased to be a director, trustee, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such person.
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ARTICLE XV
.
|
Acquisition of Capital
Stock
|
A.
Five Year
Prohibition
. For a period of five years from the effective
date of the completion of the conversion of First Savings Bank of Washington to
the stock holding company form (which entity shall become a wholly-owned
subsidiary of the corporation upon such conversion), no person shall directly or
indirectly offer to acquire or acquire 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 XI. In addition, for a
period for five years from the completion of the conversion of First Savings
Bank of Washington to the stock holding company form (which entity shall become
a wholly-owned subsidiary of the corporation upon such conversion), and
notwithstanding any provision to the contrary in this Certificate or in the
Bylaws 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 XV, 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 stockholders 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 stockholders for a
vote.
B.
Prohibition after Five
Years
. If, at any time after five years from the effective
date of the completion of the conversion of First Savings Bank of Washington to
the stock holding company form (which entity shall become a wholly-owned
subsidiary of the corporation upon such conversion), any person shall acquire
the beneficial ownership of more than 10% of any class of equity security of the
corporation without the prior approval by a two-thirds vote of the Continuing
Directors (as defined in Article XI), then the record holders of voting stock of
the corporation beneficially owned by such acquiring person shall have only the
voting rights set forth in this paragraph B on any matter requiring their vote
or consent. With respect to each vote in excess of 10% of the voting
power of the outstanding shares of voting stock of the corporation which such
record holders would otherwise be entitled to cast without giving effect to this
paragraph B, the record holders in the aggregate shall be entitled to cast only
one-hundredth of a vote, and the aggregate voting power of such record holders,
so limited for all shares of voting stock of the corporation beneficially owned
by such acquiring person, shall be allocated proportionately among such record
holders. For each such record holder, this allocation shall be
accomplished by multiplying the aggregate voting power, as so limited, of the
outstanding shares of voting stock of the corporation beneficially owned by such
acquiring person by a fraction whose numerator is the number of votes
represented by the shares of voting stock of the corporation and whose
denominator is the total number of votes represented by the shares of voting
stock of the corporation that are beneficially owned by such acquiring
person. A person who is a record owner of shares of voting stock of
the corporation that are beneficially owned simultaneously by more than one
person shall have, with respect to such shares, the right to cast the least
number of votes that such person would be entitled to cast under this paragraph
B by virtue of such shares being so beneficially owned by any of such acquiring
persons.
C.
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 "group acting in concert" includes (a) knowing
participation in a joint activity or conscious parallel action towards a common
goal whether or not pursuant to an express agreement, and (b) a combination or
pooling of voting or other interest 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
amended.
D.
Exclusion for Employee
Benefit Plans, Directors, Officers, Employees and Certain
Proxies
. The restrictions contained in this Article XV shall
not apply to (i) 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, (ii) any proxy granted to one or more Continuing Directors (as
defined in Article XI) by a stockholder of the corporation or (iii) any employee
benefit
plans of
the corporation. In addition, the Continuing Directors of the
corporation, 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 or
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 of the corporation, the officers and employees of the
corporation and its subsidiaries and the directors of subsidiaries of the
corporation being fiduciaries 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 XV should any such person or group become a beneficial owner of more
than 10% of any class or equity security of the corporation.
E.
Determinations
. A
majority of the Continuing Directors (as defined in Article XI) shall have the
power to construe and apply the provisions of the Article and to make all
determinations necessary or desirable to implement such provisions, including
but not limited to matters with respect to (i) the number of shares beneficially
owned by any person, (ii) whether a person has an agreement, arrangement, or
understanding with another as to the matters referred to in the definition of
beneficial ownership, (iii) the application of any other definition or operative
provision of this Article XV to the given facts or (iv) any other matter
relating to the applicability or effect of this Article XV. Any
constructions, applications, or determinations made by the Continuing Directors
pursuant to this Article XV 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
ARTICLE
XVI.
Special Meeting
of Shareholders
. Special meetings of the stockholders of the corporation
for any purpose or purposes may be called at any time by the board of directors
of the corporation, or by a committee of the board of directors which has been
duly designated by the board of directors and whose powers and authorities, as
provided in a resolution of the board of directors or in the Bylaws of the
corporation, include the power and authority to call such meetings, but such
special meetings may not be called by any other person or persons.
ARTICLE
XVII.
Repurchase of
Shares
. The corporation may from time to time, pursuant to
authorization by the board of directors of the corporation and without action by
the shareholders, 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.