` ARTICLES OF AMENDMENT
to
ARTICLES OF INCORPORATION
of
HUGHES SUPPLY, INC.
Pursuant to the provisions of Chapter 607, Florida Statutes, the
undersigned corporation has adopted the amendment to its articles
of incorporation, last previously amended and restated as the
Restated Articles of Incorporation of Hughes Supply, Inc. (January
24, 1989) filed with the State of Florida Department of State on
February 27, 1989 (such articles of incorporation being hereinafter
referred to as its "Articles of Incorporation"), hereinafter set
forth.
FIRST: The name of the corporation amending its Articles of
Incorporation is:
HUGHES SUPPLY, INC.
SECOND: The amendment to its Articles of Incorporation adopted by
the corporation amends Article III, Section A of its Articles of
Incorporation increasing the maximum authorized number of shares of
stock of all classes from 20,000,000 shares, consisting of
10,000,000 shares of Common Stock and 10,000,000 shares of
Preferred Stock to 30,000,000 shares, consisting of 20,000,000
shares of Common Stock and 10,000,000 shares of Preferred Stock, so
that Article III is amended to read in its entirety as follows:
ARTICLE III
Section A. The maximum number of shares of all
classes of stock which this Corporation is authorized to
issue or to have outstanding at any time shall be
30,000,000 shares, which shall be divided as follows:
(1) Not more than 20,000,000 shares of Common
Stock of $1.00 par value per share (which shall be
designated "Common Stock"); and
(2) Not more than 10,000,000 shares of
Preferred Stock of no par value per share (which shall be
designated "Preferred Stock").
Section B. Each holder of Common Stock shall have
one vote per share of such stock held, upon the payment
of the consideration fixed for the issuance of said
stock, whether such payment is made in money or in
property to be exchanged therefor at a reasonable
valuation. Said stock shall be fully paid and non-
assessable.
Section C. Holders of Common Stock shall not have
preemptive rights to purchase additional shares of Common
Stock or other securities of the Corporation whether or
not such stock or other securities are issued for cash.
Holders of securities other than Common Stock shall not
have any preemptive or other right to subscribe for, or
right of conversion into Common Stock, Preferred Stock,
or other stock or securities of the Corporation, except
such rights, if any, as may be expressly granted by the
Board of Directors.
Section D. The designations, powers, preferences,
and rights, and the qualifications, limitations, or
restrictions of the Preferred Stock shall be as follows:
Dividends on the outstanding shares of Preferred
Stock shall be declared and paid or set apart for payment
before any dividends shall be declared and paid or set
apart for payment on the outstanding shares of Common
Stock with respect to the same quarterly period.
Dividends on any shares of Preferred Stock shall be
cumulative only if and to the extent determined by
resolution of the Board of Directors, as provided below.
In the event of any liquidation, dissolution, or winding
up of the affairs of the Corporation, whether voluntary
or involuntary, the outstanding shares of Preferred Stock
shall have preference and priority over the outstanding
shares of Common Stock for payment of the amount, if any,
to which shares of each outstanding series of Preferred
Stock may be entitled in accordance with the terms and
rights thereof and each holder of Preferred Stock shall
be entitled to be paid in full such amount, or have a sum
sufficient for the payment in full set aside, before any
such payments shall be made to the holders of Common
Stock.
The Board of Directors is expressly authorized at
any time and from time to time to provide for the
issuance of shares of Preferred Stock in one or more
series, with such voting powers and with such
designations, preferences and relative participating,
optional or other rights, qualifications, limitations or
restrictions, as shall be stated and expressed in the
resolution or resolutions providing for the issue thereof
adopted by the Board of Directors, and as are not stated
and expressed in these Articles of Incorporation or any
amendment thereto or prohibited by law, including the
following:
(1) The distinctive designation of such series
and the number of shares which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors in creating
such series) or decreased (but not below the number of
shares thereof then outstanding) from time to time by the
Board of Directors; and
(2) The rate or manner of payment of dividends
on shares of each such series, including the dividend
rate, date of declaration and payment, whether dividends
shall be cumulative, and the conditions upon which and
the date from which such dividends shall be cumulative;
and
(3) Whether the shares of such series can be
redeemed, the time or times when, and the price or prices
at which, shares of such series shall be redeemable, and
the terms and conditions of redemption; and
(4) The amount payable on shares of such
series and the rights of holders of such shares in the
event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation; and
(5) The sinking fund provisions, if any, for
the redemption or purchase of shares of such series; and
(6) The rights, if any, of the holders of
shares of such series to convert such shares into, or
exchange such shares for, shares of Common Stock, or any
other securities, and the terms and conditions of such
conversion or exchange; and
(7) The voting rights, if any, whether full or
limited, of the shares of such series; provided, however,
that the voting rights of such Preferred Stock shall not
exceed one vote per share thereof and no share shall have
any voting rights until the payment therefor shall have
been received by the Corporation.
Except in respect of the particulars that may be
fixed by the Board of Directors as provided above in this
Article III, Section D, all shares of Preferred Stock
shall be of equal rank and shall be identical, and each
share of a series shall be identical in all respects with
the other shares of the same series. When payment of the
consideration for which shares of Preferred Stock are to
be issued shall have been received by the Corporation,
such shares shall be deemed to be fully paid and
nonassessable.
The Board of Directors, pursuant to the above
authorization contained in this Section D of Article III
on May 17, 1988 authorized the issuance of Series A
Junior Participating Preferred Stock as set forth in the
Resolution Establishing Series A Junior Participating
Preferred Stock which is attached to and incorporated by
reference herein as Appendix A to these Articles of
Amendment.
THIRD: The above amendment was approved by the Board of Directors
of the corporation on March 24, 1994 and recommended to the board
of directors for approval by the holders of Common Stock, the only
outstanding class of stock of the corporation.
FOURTH: The above amendment was approved by the shareholders on
May 24, 1994 by the affirmative vote of the holders of a majority
of the shares of Common Stock outstanding and entitled to vote on
the amendment. The number of votes cast was sufficient for
approval of the amendment.
Dated: June 14, 1994
HUGHES SUPPLY, INC.
By s/A. Stewart Hall, Jr.
A. Stewart Hall, Jr.
President
By s/Robert N. Blackford
Robert N. Blackford
Secretary
APPENDIX A
TO
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
HUGHES SUPPLY, INC.
RESOLUTION ESTABLISHING
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
RESOLVED, that pursuant to the authority vested in this Board
of Directors in accordance with the provisions of this
Corporation's Articles of Incorporation, a series of Preferred
Stock of this Corporation be, and it hereby is, created, and that
the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred
Stock" and the number of shares constituting such series shall be
300,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Cumulative Preferred Stock
ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred Stock
shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the third Friday in
February, May, August and November of each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $1.25 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the
Common Stock, par value $1.00 per share, of the Corporation (the
"Common Stock") since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of
a share of Series A Junior Participating Preferred Stock. In the
event the Corporation shall at any time after May 17, 1988 (the
"Rights Declaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to
which holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred Stock
as provided in paragraph (A) above immediately after it declares a
dividend or distribution on the Common Stock (other then a dividend
payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend
of $1.25 per share on the Series A Junior Participating Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock
from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Junior Participating Preferred
Stock, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A
Junior Participating Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Junior Participating Preferred Stock shall have the following
voting rights:
(A) Each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to 1 vote on all matters
submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred Stock end
the holders of shares of Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
(C) Holders of Series A Junior Participating Preferred Stock
shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred
Stock as provided in Section 2 are in arrears, thereafter and until all
accrued end unpaid dividends and distributions, whether or not declared,
on shares of Series A Junior Participating Preferred Stock outstanding
shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration, any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on, or make any
other distributions on, any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior Participating
Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series
A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on a
parity with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes,
shall determine in good faith will result in fair and
equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation could,
under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon
any liquidation (voluntary or otherwise), dissolution or winding up
of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders
of shares of Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "Adjustment Number"). Following the
payment of the full amount of the Series A Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of
Series A Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating Preferred
Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect
to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
preferred stock, if any, which rank on a parity with the Series A
Junior Participating Preferred Stock, then such remaining assets shall
be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment Number
in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption or Conversion. The shares of
Series A Junior Participating Preferred Stock shall not be
redeemable or convertible into any other securities of the
Corporation.
Section 9. Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.
Section 10. Amendment. In the event shares of Series A Junior
Participating Preferred Stock are outstanding, the Articles of
Incorporation of the Corporation shall not be further amended in any
manner which would materially alter or change the powers, preferences or
special rights of the Series A Junior Participating Preferred Stock so as
to affect them adversely without the affirmative vote of the holders of
two-thirds or more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.
RESTATED ARTICLES OF INCORPORATION
HUGHES SUPPLY, INC.
(January 24, 1989)
We, the undersigned, hereby certify that the following Restated
Articles of Incorporation of Hughes Supply, Inc. were duly adopted by the
Corporation's Board of Directors at a meeting held on January 24, 1989,
and that such Restated Articles of Incorporation only restate and
integrate and do not further amend the provisions of the Corporation's
Articles of Incorporation as heretofore amended and there is no
discrepancy between the Corporation's Articles of Incorporation as
heretofore amended and the provisions of these Restated Articles of
Incorporation and the omission of matters of historical interest.
ARTICLE I
The name of this Corporation shall be:
HUGHES SUPPLY, INC.
ARTICLE II
The general nature of business to be transacted by this Corporation
is:
Section A. To engage in every aspect and phase of the business of
buying, selling, distributing, handling and storing all types of
electrical, plumbing, heating and air conditioning, industrial and
utilities supplies, fixtures and hardware, tools and contractors'
supplies.
Section B. To manufacture, purchase, or otherwise acquire, and to
own, mortgage, pledge, sell, assign, transfer, or otherwise dispose of,
and to invest in, trade in, deal in and with, goods, wares, merchandise,
real and personal property, and services, of every class, kind and
description, except that it is not to conduct a banking, safe deposit,
trust, insurance, surety, express, railroad, canal, telegraph, telephone
or cemetery company, a building and loan association, mutual fire
insurance association, cooperative association, fraternal benefits
society, state fair or exposition.
Section C. To conduct business in, have one or more offices in, and
buy, hold, mortgage, sell, convey, lease or otherwise dispose of real and
personal property, including franchises, patents, copyrights, trademarks,
licenses, in the State of
Florida, and in all other States and Countries.
Section D. To contract debts and borrow money, issue and sell or
pledge bonds, debentures, notes and other evidences of indebtedness, and
execute such mortgages, transfers of corporate property or other
instruments to secure the payment of corporate indebtedness as required.
Section E. To purchase the corporate assets of any other corporation
and engage in the same or other character of business.
Section F. To guarantee, endorse, purchase, hold, sell, transfer,
mortgage, pledge or otherwise acquire or dispose of the shares of the
capital stock of, or any bonds, securities, or other evidences of
indebtedness created by any other corporation of the State of Florida or
any other state or government, and while owner of such stock to exercise
all the rights, powers and privileges of ownership, including the right
to vote such stock.
ARTICLE III
Section A. The maximum number of shares of all classes of stock
which this Corporation is authorized to issue or to have outstanding at
any time shall be 20,000,000 shares, which shall be divided into classes
as follows:
(1) Not more than 10,000,000 shares of Common Stock of $1.00
par value per share (which shall be designated "Common Stock"); and
(2) Not more than 10,000,000 shares of Preferred Stock of no
par value per share (which shall be designated "Preferred Stock").
Section B. Each holder of Common Stock shall have one vote per share
of such stock held, upon the payment of the consideration fixed for the
issuance of said stock, whether such payment is made in money or in
property to be exchanged therefor at a reasonable valuation. Said stock
shall be fully paid and nonassessable.
Section C. Holders of Common Stock shall not have preemptive rights
to purchase additional shares of Common Stock or other securities of the
Corporation whether or not such stock or other securities are issued for
cash. Holders of securities other than Common Stock shall not have any
preemptive or other right to subscribe for, or right of conversion into
Common Stock, Preferred Stock, or other stock or securities of the
Corporation, except such rights, if any, as may be expressly granted by
the Board of Directors.
Section D. The designations, powers, preferences, and rights, and
the qualifications, limitations, or restrictions of the Preferred Stock
shall be as follows:
Dividends on the outstanding shares of Preferred Stock shall be
declared and paid or set apart for payment before any dividends shall be
declared and paid or set apart for payment on the outstanding shares of
Common Stock with respect to the same quarterly period. Dividends on any
shares of Preferred Stock shall be cumulative only if and to the extent
determined by resolution of the Board of Directors, as provided below.
In the event of any liquidation, dissolution, or winding up of the affairs
of the Corporation, whether voluntary or involuntary, the outstanding
shares of Preferred Stock shall have preference and priority over the
outstanding shares of Common Stock for payment of the amount, if any, to
which shares of each outstanding series of Preferred Stock may be entitled
in accordance with the terms and rights thereof and each holder of
Preferred Stock shall be entitled to be paid in full such amount, or have
a sum sufficient for the payment in full set aside, before any such
payments shall be made to the holders of Common Stock.
The Board of Directors is expressly authorized at any time and from
time to time to provide for the issuance of shares of Preferred Stock in
one or more series, with such voting powers and with such designations,
preferences and relative participating, optional or other rights,
qualifications, limitations or restrictions, as shall be stated and
expressed in the resolution or resolutions providing for the issue thereof
adopted by the Board of Directors, and as are not stated and expressed in
these Articles of Incorporation or any amendment thereto or prohibited by
law, including the following:
(1) The distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors in
creating such series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by the Board of Directors; and
(2) The rate or manner of payment of dividends on shares of
each such series, including the dividend rate, date of declaration and
payment, whether dividends shall be cumulative, and the conditions upon
which and the date from which such dividends shall be cumulative; and
(3) Whether the shares of such series can be redeemed, the time
or times when, and the price or prices at which, shares of such series
shall be redeemable, and the terms and conditions of redemption; and
(4) The amount payable on shares of such series and the rights
of holders of such shares in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation;
and
(5) The sinking fund provisions, if any, for the redemption or
purchase of shares of such series; and
(6) The rights, if any, of the holders of shares of such series
to convert such shares into, or exchange such shares for, shares of Common
Stock, or any other securities, and the terms and conditions of such
conversion or exchange; and
(7) The voting rights, if any, whether full or limited, of the
shares of such series; provided, however, that the voting rights of such
Preferred Stock shall not exceed one vote per share thereof and no share
shall have any voting rights until the payment therefor shall have been
received by the Corporation.
Except in respect of the particulars that may be fixed by the Board
of Directors as provided above in this Article III, Section D, all shares
of Preferred Stock shall be of equal rank and shall be identical, and each
share of a series shall be identical in all respects with the other shares
of the same series. When payment of the consideration for which shares
of Preferred Stock are to be issued shall have been received by the
Corporation, such shares shall be deemed to be fully paid and
nonassessable.
The Board of Directors, pursuant to the above authorization contained
in this Section D of Article III on May 17, 1988 authorized the issuance
of Series A Junior Participating Preferred Stock as set forth in the
Resolution Establishing Series A Junior Participating Preferred Stock
which is attached to and incorporated by reference herein as Appendix A
to these Restated Articles of Incorporation.
ARTICLE IV
The amount of capital with which this Corporation shall begin
business is the sum of Five Hundred Dollars ($500.00).
ARTICLE V
This Corporation shall have perpetual existence.
ARTICLE VI
The principal office and place of business of this Corporation shall
be located at 521 West Central Boulevard, Orlando, Florida, but this
Corporation may establish and maintain its principal office, or other
offices, at other places in the United States of America, its Colonies or
dependencies, and in any foreign country as its Board of Directors may
from time to time determine.
ARTICLE VII
Section A. Number of Directors. The number of Directors of this
Corporation shall be the number from time to time fixed by the holders of
record of at least 80% of the outstanding shares of stock entitled to vote
or by the Directors in accordance with the terms and conditions of the By-
Laws, but at no time shall said number of Directors be less than three.
Section B. Term of Directors. The Directors shall be classified
with respect to the time for which they shall severally hold office by
dividing them into three classes, each consisting of as near one-third of
the whole number of Directors as practicable, and all Directors of the
Corporation shall hold office until their successors are elected and
qualified. The first such classification shall be made at the Annual
Meeting of Shareholders to be held in the year 1975. At that Annual
Meeting, the Directors shall be classified for staggered terms of 1, 2,
and 3 years, respectively, and at each successive Annual Meeting, the
successors to the class of Directors whose terms expire that year shall
be elected to hold office for the term of three years, so that the term
of office of one class of Directors shall expire each year. Any vacancy
which shall occur in a class of Directors prior to the expiration of the
term of such class may be filled by the Board of Directors for the
remainder of the full term.
Section C. Removal of Directors. Notwithstanding any other
provisions of these Articles of Incorporation, the By-Laws of the
Corporation or applicable law, the affirmative vote of the holders of
record of at least 80% of the outstanding shares of stock entitled to vote
shall be required to remove Directors of the Corporation without cause.
Section D. Amendment. Notwithstanding any other provision of the
Articles of Incorporation, the By-Laws of the Corporation or applicable
law, the affirmative vote of the holders of record of at least 80% of the
outstanding shares of stock entitled to vote shall be required (1) to
amend, modify or repeal this Article VII, (2) adopt any provision of the
Articles of Incorporation or the By-Laws of the Corporation which is
inconsistent with this Article VII, or (3) prior to the fixing by the
Board of Directors of any right or preference of any series of Preferred
Stock which is inconsistent with the provisions of this Article VII.
ARTICLE VIII
Stock certificates to replace lost or destroyed certificates shall
be issued on such basis and according to such procedures as are from time
to time provided for in the By-Laws of the Corporation.
ARTICLE IX
The names and post office addresses of the first Board of Directors
are as follows, and these Directors shall hold office for the first year
of this Corporation's existence, or until their successors shall be
elected and qualified:
Russell S. Hughes 526 Grove Park Drive, Orlando, Fla.
Harry C. Hughes 521 W. Central Avenue, Orlando, Fla.
Romania S. Hughes 816 E. Central Avenue, Orlando, Fla.
ARTICLE X
The name and post office address of each of the subscribers to these
Articles of Incorporation, and the number of shares subscribed for by each
are as follows:
Russell S. Hughes 526 Grove Park Drive, Orlando, Fla.
1 sh.
Harry C. Hughes 521 W. Central Avenue, Orlando, Fla.
1 sh.
Romania S. Hughes 816 E. Central Avenue, Orlando, Fla.
2 shs.
ARTICLE XI
These Articles of Incorporation may be amended in the manner provided
by law. Every Amendment shall be approved by the Board of Directors,
proposed by them to the stockholders, and approved at the stockholders'
meeting by a majority of the stock issued and entitled to be voted unless
all the Directors and all the stockholders sign a written statement
manifesting their intention that a certain Amendment of these Articles of
Incorporation be made.
ARTICLE XII
No plan of consolidation or merger under which the Corporation is not
the surviving constituent corporation shall be deemed approved by the
stockholders unless such plan of consolidation or merger shall be approved
by the affirmative vote of two-thirds of the total number of shares of
stock outstanding and entitled to vote. No amendment to the Articles of
Incorporation may amend or delete the requirement that two-thirds of the
total number of shares of stock outstanding and entitled to vote approve
any plan of consolidation or merger under which the Corporation is not the
surviving constituent corporation unless at a meeting duly called two-
thirds of the total number of shares of stock outstanding and entitled to
vote shall approve such amendment or deletion of such requirement.
ARTICLE XIII
Section A. Higher Vote Required for Certain Business Combinations.
In addition to any affirmative vote required by law or these Articles of
Incorporation, and except as expressly provided in Section B of this
Article XIII, the affirmative vote of the holders of two-thirds of the
then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (the "Voting Stock") shall be
required for the approval or authorization of any Business Combination (as
hereinafter defined).
Section B. Exceptions to Higher Voting Requirement. The provisions
of Section A of this Article XIII shall not be applicable to any
particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law or any other
Article of these Articles of Incorporation, if the Business Combination
shall have been approved by a majority of the directors who are
Disinterested Directors (as hereinafter defined) or if all of the
following conditions are met:
1. The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received per
share by holders of Common Stock in such Business Combination shall be at
least equal to the higher of (i) the highest price paid for any share of
Common Stock by the Interested Shareholder (as hereinafter defined)
involved in the proposed Business Combination within the two-year period
immediately prior to the time of the first public announcement of such
proposed Business Combination (the "Announcement Date") or in the
transaction in which such person became an Interested Shareholder,
whichever price is the higher; or (ii) the Fair Market Value per share of
the Corporation's Common Stock on the Announcement Date, or on the date
on which the Interested Shareholder became an Interested Shareholder (the
"Determination Date"), whichever is higher. The price paid for any share
of Common Stock shall be the amount of cash plus the Fair Market Value of
any other consideration to be received therefor, deter-mined at the time
of payment therefor.
2. The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in
cash or in the same form as the Interested Shareholder has previously paid
for shares of such class of Voting Stock. If the Interested Shareholder
has paid for shares of any class of Voting Stock with varying forms of
consideration, the form of consideration for such class of Voting Stock
shall be either cash or the form of consideration used to acquire the
largest number of shares of such class of Voting Stock previously acquired
by it. The price determined in accordance with Paragraph 1 of this
Section B shall be subject to appropriate adjustment in the event of any
stock dividend, stock split, combination of shares or similar event.
3. After the Determination Date and prior to the consummation
of such Business Combination: (i) there shall have been (a) no reduction
in the annual rate of dividends paid on the Common Stock (except as
necessary to reflect any subdivision of the Common Stock) and no failure
to declare and pay at the regular date therefor any full dividend (whether
or not cumulative) on any outstanding Preferred Stock, except as approved
by a majority of the directors who are Disinterested Directors, and (b)
an increase in the annual rate of dividends if necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing
the number of outstanding shares of stock, unless the failure so to
increase such rates is approved by a majority of the directors who are
Disinterested Directors; and (ii) such Interested Shareholder shall not
have become the beneficial owner of any additional shares of Voting Stock
without the approval of a majority of the directors who are Disinterested
Directors except as part of the transaction which results in such
Interested Shareholder becoming an Interested Shareholder or pursuant to
a stock ownership, stock option or other benefit plan maintained by the
Corporation or any of its subsidiaries generally for the officers and/or
employees of the Corporation or any of its subsidiaries.
4. After the Determination Date, such Interested Shareholder
shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
5. A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(or any subsequent provisions replacing such act, rules or regulations)
shall be mailed to all stockholders of the Corporation at least 30 days
prior to the consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed pursuant to
such act or subsequent provisions).
Section C. Certain Definitions. For purposes of this Article XIII:
1. The term "Business Combination" shall mean:
(i) any merger or consolidation (except a merger or
consolidation in which the Corporation is not the surviving constituent
corporation) of the Corporation or any Subsidiary (as hereinafter defined)
with or into (a) any Interested Shareholder, or (b) any other corporation
(whether or not itself an Interested Shareholder) which is, or after such
merger or consolidation would be, an Affiliate or Associate (as those
terms are defined on July 1, 1985 in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended) of an Interested Shareholder;
(ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions) to
or with any Interested Shareholder or any Affiliate or Associate of an
Interested Shareholder of assets of the Corporation or any Subsidiary
having a fair market value in excess of 10% of the Fair Market Value of
the total consolidated assets of the Corporation as of the end of its most
recent fiscal year ending prior to the time the determination is being
made;
(iii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions) of
all or a substantial part of the assets of an Interested Shareholder or
an Affiliate or Associate of an Interested Shareholder to the Corporation
or any Subsidiary for consideration having a Fair Market Value aggregating
$5,000,000 or more;
(iv) the issuance or transfer by the Corporation or any
Subsidiary of any securities of the Corporation or any Subsidiary to any
Interested Shareholder or any Affiliate or Associate of an Interested
Shareholder other than the issuance of securities by the Corporation or
any Subsidiary (a) upon the exercise of warrants or the conversion of
convertible securities of the Corporation or any Subsidiary which are
directly or indirectly owned by any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder, or (b) in connection
with any stock option, stock ownership or other benefit plan maintained
by the Corporation or any Subsidiary generally for the officers and/or
employees of the Corporation or any Subsidiary;
(v) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf of
any Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
(vi) any reclassification or recapitalization (including
any reverse stock split) of the Corporation or a merger or consolidation
(except a merger or consolidation in which the Corporation is not the
surviving constituent corporation) of the Corporation with any Subsidiary
or a reorganization or any other transaction (whether or not with or into
or otherwise involving an Interested Shareholder) which has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding stock of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by an
Interested Shareholder or any Affiliate or Associate of an Interested
Shareholder.
2. The term "Interested Shareholder" shall mean and include
any person, corporation or other entity which is the beneficial owner,
directly or indirectly, of 10% or more of the combined voting power of the
then outstanding Voting Stock of the Corporation.
3. The term "Disinterested Director" shall mean and include
each director of the Corporation who is not himself or herself the
Interested Shareholder proposing the Business Combination or an Affiliate
or Associate of such Interested Shareholder or an officer, director or
employee of such Interested Shareholder or of an Affiliate or Associate
of such Interested Shareholder.
4. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to
vote or to direct the vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares
of Voting Stock.
5. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Paragraph 2 of this Section C, the
number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned through application of Paragraph 4 of this Section C
but shall not include any other shares of Voting Stock which may be
issuable to other persons pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options,
or otherwise.
6. The term "Fair Market Value" shall mean: (i) in the case
of stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on the
principal United States Securities Exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or
if no such quotations are available, the fair market value on the date in
question of a share of such stock as determined by a majority of the
directors who are Disinterested Directors in good faith; and (ii) in the
case of stock of any class of securities not traded on any securities
exchange or in the over-the-counter market or in the case of property
other than cash or stock, the fair market value of such securities or
property on the date in question as determined by a majority of the
directors who are Disinterested Directors in good faith.
7. The term "Subsidiary" shall mean any corporation of which
a majority of the voting shares is owned, directly or indirectly, by the
Corporation.
8. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration to be received" as used
in Paragraphs 1 and 2 of Section B shall include the shares of Common
Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
Section D. Powers of the Board of Directors. The Board of Directors
acting by a majority of the directors who are Disinterested Directors
shall have the power and duty to determine for the purpose of this Article
XIII on the basis of information known to them after reasonable inquiry,
all facts necessary to determine the applicability of the various
provisions of this Article XIII including, (1) whether a person is an
Interested Shareholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, and (4) whether the requirements of Section B have
been met with respect to any Business Combination, and the good faith
determination of a majority of the directors who are Disinterested
Directors shall be conclusive and binding for all purposes of this Article
XIII.
Section E. No Effect on Fiduciary Obligations. Nothing contained
in this Article XIII shall be construed to relieve any Interested
Shareholder from any fiduciary obligation imposed by lain.
Section F. Severability. In the event any provision (or any part
thereof) of this Article XIII should be determined to be invalid,
prohibited or unenforceable for any reason, the remaining provisions, and
parts thereof, shall remain in full force and effect and enforceable
against the Corporation and its shareholders, including any Interested
Shareholder, to the fullest extent permitted by law.
Section G. Amendment. Notwithstanding any other provision of the
Articles of Incorporation, the By-Laws of the Corporation or applicable
law, the affirmative vote of two-thirds of the votes of then outstanding
Voting Stock, voting together as a single class, shall be required (1) to
amend, modify or repeal this Article XIII, (2) adopt any provision of the
Articles of Incorporation or By-Laws which is inconsistent with this
Article XIII, or (3) prior to the fixing by the Board of Directors of any
right or preference of any series of Preferred Stock which is inconsistent
with the provisions of this Article XIII.
ARTICLE XIV
Notwithstanding any other provision of the Articles of Incorporation,
the By-Laws of the Corporation or applicable law, (a) any special meeting
of the stockholders called by a stockholder or stockholders must be called
by a request in writing submitted by the holder or holders of at least 80%
of the outstanding shares of stock entitled to vote, (b) the stockholders
of the Corporation shall not be permitted to take action by means of
written consents, and (c) the affirmative vote of at least 80% of the
outstanding shares of stock entitled to vote shall be required (i) to
amend, modify or repeal this Article XIV, (ii) adopt any provision of the
Articles of Incorporation or By-Laws of the Corporation which is
inconsistent with this Article XIV, or (iii) prior to the fixing by the
Board of Directors of any right or preference of any series of Preferred
Stock which is inconsistent with the provisions of this Article XIV.
Upon the filing of these Restated Articles of Incorporation of the
Florida Department of State, the Corporation's original Articles of
Incorporation as heretofore amended, shall be superseded, and thereafter
these Restated Articles of Incorporation shall in accordance with Section
607.194 of the Florida General Corporation Act, be the Articles of
Incorporation of the Corporation.
Witness our hands and seals and the Corporate Seal of said
Corporation this 31st day of January, 1989.
s/David H. Hughes
DAVID H. HUGHES, President
Hughes Supply, Inc.
s/Robert N. Blackford
ROBERT N. BLACKFORD, Secretary
Hughes Supply, Inc.
(CORPORATE SEAL)
STATE OF FLORIDA )
)
COUNTY OF ORANGE )
Personally appeared before me, the undersigned authority, David H.
Hughes, well known to me and known to me to be the President of Hughes
Supply, Inc., and after having been duly sworn, he did depose and say that
the foregoing Restated Articles of Incorporation were duly approved by the
Board of Directors and stockholders of the Corporation as stated.
Witness my hand and seal in the County and State aforesaid this 31st
day of January, 1989.
s/Eileen G. Weisenbarger
NOTARY PUBLIC
My Commission Expires: July 29, 1991
Notary Public, State of Florida
APPENDIX A
TO
SECOND RESTATED ARTICLES OF INCORPORATION
RESOLUTION ESTABLISHING
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
HUGHES SUPPLY, INC.
RESOLVED, that pursuant to the authority vested in this Board of
Directors in accordance with the provisions of this Corporation's Articles
of Incorporation, a series of Preferred Stock of this Corporation be, and
it hereby is, created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" and the
number of shares constituting such series shall be 300,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Cumulative Preferred Stock ranking prior and
superior to the shares of Series A Junior Participating Preferred Stock
with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the third Friday in
February, May, August and November of each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $1.25 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, par value $1.00 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share
of Series A Junior Participating Preferred Stock. In the event the
Corporation shall at any time after May 17, 1988 (the "Rights Declaration
Date") (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in each such case the amount to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Junior Participating Preferred Stock as provided in
paragraph (A) above immediately after it declares a dividend or
distribution on the Common Stock (other then a dividend payable in shares
of Common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.25 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to 1 vote on all matters
submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred Stock end
the holders of shares of Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
(C) Holders of Series A Junior Participating Preferred Stock
shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred
Stock as provided in Section 2 are in arrears, thereafter and until all
accrued end unpaid dividends and distributions, whether or not declared,
on shares of Series A Junior Participating Preferred Stock outstanding
shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or otherwise
acquire for consideration, any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred
Stock;
(ii) declare or pay dividends on, or make
any other distributions on, any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for
shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation
or winding up) to the Series A Junior Participating
Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on a
parity with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes,
shall determine in good faith will result in fair and
equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation could,
under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon
any liquidation (voluntary or otherwise), dissolution or winding up
of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders
of shares of Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "Adjustment Number"). Following the
payment of the full amount of the Series A Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of
Series A Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating Preferred
Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect
to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
preferred stock, if any, which rank on a parity with the Series A
Junior Participating Preferred Stock, then such remaining assets shall
be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment Number
in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption or Conversion. The shares of
Series A Junior Participating Preferred Stock shall not be
redeemable or convertible into any other securities of the
Corporation.
Section 9. Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.
Section 10. Amendment. In the event shares of Series A Junior
Participating Preferred Stock are outstanding, the Articles of
Incorporation of the Corporation shall not be further amended in any
manner which would materially alter or change the powers, preferences or
special rights of the Series A Junior Participating Preferred Stock so as
to affect them adversely without the affirmative vote of the holders of
two-thirds or more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.