1 Exhibit 3a
RESTATED ARTICLES OF INCORPORATION
OF
TWIN DISC, INCORPORATED
ARTICLE I.
The name of this Corporation shall be: "TWIN DISC, INCORPORATED"
ARTICLE II.
The purpose or purposes for which this Corporation is organized is
to engage in any lawful activities within the purposes for which
corporations may be organized under the Wisconsin Business Corporation
Law. In particular, but without limitation thereto by reason of such
enumeration or restriction upon exercise of any powers, objects or
purposes to manufacture, produce, buy, sell, deal and dispose of all
kinds of goods, wares, merchandise, manufactures, products, commodities
and supplies, either of its own design or under license from others of
their design, and in general to carry on a manufacturing business on
its own behalf or as a contractor therefore in any state, district or
country, and to acquire, own, use, convey, lease, sell, ledge, mortgage,
encumber and otherwise dispose of real and personal property, tangible
and intangible property, property of mixed characteristics, patents,
franchises, privileges, and rights of any and all kinds and wheresoever
situated, and to borrow such funds and issue evidences of indebtedness of
any and all kinds therefore, and to secure the same, all in such fashion
as is deemed to be in the best interests of the Corporation.
ARTICLE III.
A. The capital stock of this Corporation shall consist of 15,000,000
shares of common stock without nominal or par value and 200,000 shares
of no-par preferred stock, the latter as more fully hereinafter provided.
No holder of shares of capital stock of this Corporation shall
have any preemptive, preferential or other right to subscribe for or
purchase any part of the unissued capital stock or capital stock of
this Corporation held in the corporate treasury, whether now or
hereafter authorized, or of other securities of this Corporation of any
type or class which are convertible into capital stock of this
Corporation excepting as the preferred shares herein provided may be
made convertible into shares of the common stock of this Corporation.
Shares of preferred stock may be issued from time to time in one
or more series, each such series to have such distinctive designation or
title as may be fixed by the Board of Directors prior to the issuance of any
shares thereof, and the number of shares of preference stock to be issued
shall be determined from time to time by the Board of Directors. Each such
series may differ from every other series already outstanding as may be
determined from time to time by the Board of Directors prior to the issuance
of any shares thereof, in any or all of the following, but in not other,
respects:
(a) The rate of dividend which the preferred stock of any such
series shall be entitled to receive;
(b) The price at and the terms and conditions upon which such
shares may be redeemed;
(c) The amount payable upon such shares in the event of voluntary
or involuntary liquidation;
(d) Sinking fund provisions for the redemption or purchase of such
shares;
(e) The terms and conditions upon which such shares may be
converted into shares of common stock, if the shares of any series are
issued with the privilege of conversion.
Except as to the matters expressly set forth hereinabove, all series of
the preferred stock whenever designated and issued shall have the same
preferences, limitations, and relative rights and shall rank equally, share
ratably, and be identical in all respects as to all other matters. All
shares of one series of preferred stock shall be alike in every particular
and each series of preferred stock shall be so designated as to distinguish
the shares thereof from the shares of all other series or classes.
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Before any dividends shall be paid or set apart for payment upon the
common stock, the holders of preferred stock shall be entitled to receive
dividends at the rate per annum specified by the Board of Directors as above
provided, and no more, payable at such times in each year as may be fixed by
the Board of Directors out of the unreserved and unrestricted earned surplus
of the Corporation or any net capital surplus legally available for the
payment of such dividends. All dividends on preferred stock shall be
cumulative. The holders, however, shall not be entitled to participate in
any other earnings or profits of the Corporation except for such premiums,
if any, as may be payable in case of redemption, liquidation, dissolution or
winding up.
Holders of the common stock and of the preferred stock of the
Corporation shall be entitled to one vote for each share held, on all
questions on which shareholders of the Corporation are entitled to vote.
Holders of each class of stock shall also have such right to vote as a class
as is provided by the applicable statutes of the State of Wisconsin.
B. Pursuant to the authority vested in the Board of Directors of this
Corporation in accordance with the provisions of its Restated Articles of
Incorporation, a series of Preferred Stock of the 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 Preferred Stock" and the number of shares
constituting such series shall be 150,000.
SECTION 2. Dividends and Distributions.
A. Subject to the prior and superior rights of the holders of any
series of Preferred Stock ranking prior and superior to the shares of Series
A Junior Preferred Stock with respect to dividends, the holders of shares of
Series A Junior 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 first day of January,
April, July and October in 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 Preferred Stock, in an amount per
shares (rounded to the nearest cent) equal to the greater of (a) $5.00 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, without par
value 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 of
fraction of a share of Series A Junior Preferred Stock. In the event the
Corporation shall at any time after June 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 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 Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than 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 $5.00 per
share on the Series A Junior 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 Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Junior Preferred Stock, unless the date of issue of such shares is prior to
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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 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. Series A Junior Preferred Stock in an
amount less that 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 of
shares of Series A Junior 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 payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series A Junior
Preferred Stock shall have the following voting rights:
A. Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Preferred Stock shall entitle the holder thereof to
one 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 Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to
a vote of shareholders of the Corporation.
C. (i) If at any time dividends on any Series A Junior Preferred Stock
shall be in arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend until such time
when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of
Series A Junior Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default period, all holders
of Preferred Stock (including holders of the Series A Junior Preferred
Stock) with dividends in arrears in an amount equal to six (6) quarterly
dividends thereon, voting as a class, irrespective of series, shall have the
right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders
of Series A Junior Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(c) or at any
annual meeting of shareholders, and thereafter at annual meetings of
shareholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if an, to increase, in
certain cases, the authorized number of Directors shall be exercised unless
the holders of ten percent (10%) in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The absence of a quorum
of the holders of the Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting at which the
holders of Preferred Stock shall exercise such voting right initially during
an existing default period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the Board of Directors as
my then exist up to two (2) Directors or, if such right is exercised at an
annual meeting, to elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the required number, the
holders of the Preferred Stock shall have the right to make such increase in
the number of Directors as shall be necessary to permit the election by them
of the required number. After the holders of the Preferred Stock shall have
exercised their right to elect Directors in any default period and during
the continuance of such period, the number of Directors shall not be
increased or decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Junior Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of a special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the President,
a Vice-President or the Secretary of the Corporation. Notice of such meeting
and of any annual meeting at which holders of Preferred Stock are entitled
to vote pursuant to this paragraph (C) (iii) shall be given to each holder
of record of Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the Corporation. Such
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meeting shall be called for a time not earlier than 20 days and not later
than 60 days after such order or request or in default of the calling of
such meeting within 60 days after such order or request, such meeting may be
called on similar notice by any shareholder or shareholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (C)(iii), no such special meeting shall be called during the
period within 60 days immediately preceding the date fixed for the next
annual meeting of the shareholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect two (2) Directors voting as a
class, after the exercise of which right (x) the Directors so elected by the
holders of Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of the default
period, and (y) any vacancy in the Board of Directors may (except as provided
in paragraph (c)(ii) or this Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of stock
which elected by the holders of the class of stock which elected the Director
whose office shall have become vacant. References in this paragraph (C) to
Directors elected by the holders of a particular class of stock shall include
Directors elected by such Directors to fill vacancies as provided in clause (y)
of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall cease,
(y) the term of any Directors elected by the holders of Preferred Stock as a
class shall terminate, and (z) the number of Directors shall be such number as
may be provided for in the articles of incorporation or by-laws irrespective of
any increase made pursuant to the provisions of paragraph (C)(ii) of this
Section 3 (such number being subject, however, to change thereafter in any
manner provided by law or in the articles of incorporation or by-laws). Any
vacancies in the Board of Directors effected by the provisions of clauses (y)
and (z) in the preceding sentence may be filled by a majority of the remaining
Directors.
D. Except as set forth herein, holders of Series A Junior 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 Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Junior 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 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 Series A Junior Preferred Stock,
except dividends paid ratably on the Series A Junior 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 Preferred Stock, provided
that the Corporation may at any time redeem, purchase or otherwise acquire
hares 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 Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Preferred Stock, or any shares of stock ranking on a parity
with the Series A Junior 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,
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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) or this Section 4,
purchase or otherwise acquire such shares at such time in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Junior 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 Stock unless, prior thereto,
the holders of shares of Series A Junior Preferred Stock shall have received a
premium of $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 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 Liquidations 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 Preferred Stock and Common Stock, respectively, holders of Series A
Junior Preferred Stock, as a further premium upon such liquidation, dissolution
or winding up of the Company, 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 Preferred Stock, then such remaining
asset 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 the number of shares 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 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 Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
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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. Optional Redemption
A. The Corporation shall have the right to redeem the Series A Junior
Preferred Stock at any time, either in whole or in such portions as from time
to time the provision for adjustment hereinafter set forth, 100 times the
"current per share market price" of the Common Stock on the date of the mailing
of the notice of redemption, plus an amount equal to accrued and unpaid
dividends thereon to the date fixed for redemption (the "Redemption Date") (the
total sum so payable upon any redemption being hereinafter referred to as the
"Redemption Price"). 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 to which holders of shares of Series A Junior
Preferred Stock were otherwise entitled immediately prior to such even under
the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator or which is the number of shares of Common Stock
outstanding immediately prior to such event. The "current per share market
price" on any date shall be deemed to be the average of the closing price per
share of such Common Stock for the 10 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date. The closing price for
each day shall be the last sale price, regular way, or in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if the Common Stock
is not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations Systems ("NASDAQ")
or such other system then in use or, if on any such date the Common Stock is
not quoted by such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
Common Stock selected by the Board of Directors of the Corporation. If on such
date no such market maker is making a market in the Common Stock, the fair
value of the Common Stock on such date as determined in good faith by the Board
of Directors of the Corporation shall be used. The term "Trading Day" shall
mean a day on which the principal national securities exchange on which the
Common Stock listed or admitted to trading is open for the transaction of
business or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday
on which banking institutions in the State of Wisconsin are not authorized or
obligated by law or executive order to close.
B. At its election, the Corporation, on or prior to the Redemption Date,
may deposit the aggregate of the Redemption Price of the shares so to be
redeemed with such responsible band or trust company in Milwaukee, Wisconsin
(hereinafter referred to as the "Depositary"), as may be designated by the
Board of Directors, in trust for payment on and after the Redemption Date to
the holders of the Series A Junior Preferred Stock then to be redeemed. If less
than the whole amount of the outstanding Series A Junior Preferred Stock of any
particular series shall be redeemed at any time the shares thereof to be
redeemed shall be selected pro rata, by lot, or in such other manner as the
Board of Directors in its discretion may determine. Notice of any such
redemption shall be mailed to each holder of record of the shares of the Series
A Junior Preferred Stock so to be redeemed, at his address registered with the
Corporation, no more than 60 nor less than 30 days prior to the Redemption
Date, and if less than all the shares owned by such shareholder are then to be
redeemed the notice shall specify the shares which are to be redeemed. Notice
of redemption having been so given, the shares therein designated for
redemption shall not be entitled to any dividends which may be declared after
the Redemption Date specified in such notice, unless default be made in the
payment or deposit of the Redemption Price, and on such Redemption Date, or
any date prior thereto on which the deposit herein provided for shall have been
made, all rights of the respective holders of the said shares, as shareholders
of the Corporation by reason of the ownership of such shares, shall cease,
except the right to receive the Redemption Price of such shares upon
presentation and surrender of their respective certificates representing the
said shares (and except also the right to receive from the Depositary on any
quarterly dividend date which may intervene between the deposit of monies and
the Redemption Date the amount of such quarterly dividend); and such shares
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shall not after such Redemption Date or date of deposit be deemed to be
outstanding. In case less than all the shares represented by such certificates
are redeemed a new certificate shall be issued representing the unredeemed
shares.
C. In case the holder of shares of Series A Junior Preferred Stock which
shall have been called for redemption shall not, within 5 years after the
Redemption Date, claim the amount deposited with respect to the redemption
thereof, and the Depositary shall , upon demand, pay over to the Corporation
such unclaimed amount, the Depositary shall be relieved of all responsibility
in respect thereof to such holder and such holder shall look only to the
Corporation for the payment thereof. Any interest accrued on any funds so
deposited shall belong to the Corporation.
D. All shares of Series A Junior Preferred Stock which shall at any time
have been redeemed shall, after such redemption, have the status of authorized
but unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
SECTION 9. Ranking. The Series A Junior 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. At such time as shares of Series A Junior Preferred
Stock are outstanding, the Restated 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 Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of a majority or more of the outstanding shares of Series
A Junior Preferred Stock, voting separately as a class.
SECTION 11. Fractional Shares. Series A Junior Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder's 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 Preferred Stock.
ARTICLE IV.
A. Except as set forth in parts (b) and (e) of the Article, the
affirmative vote or consent of the holders of shares of all classes of stock of
the Corporation possessing four-fifths of the voting rights in elections of
Directors, considered for the purpose of this Article as one class, shall be
required:
(i) for the adoption of any agreement for the merger or consolidation
of this Corporation with or into any other corporation, or
(ii) to authorize any sale, lease, exchange, mortgage, pledge or other
disposition of all or substantially all of any substantial part of the assets
of the Corporation or any subsidiary of the Corporation to any other
corporation, or
(iii) to authorize the issuance or transfer by this Corporation of
securities of this Corporation in exchange for the securities or assets of any
other corporation.
Such affirmative vote or consent shall be in lieu of the vote or consent
of the holders of the stock of the Corporation otherwise required by law, these
Articles of Incorporation, or any agreement or contact to which the Corporation
is a party.
B. The provisions of Subparagraph (a) of this Article shall not be
applicable to any transaction described therein if such transaction is approved
by resolution of the Board of Directors of this Corporation, provided that the
majority of the members of the Board of Directors voting for approval of such
transaction were duly elected and acting members of the Board of Directors
prior to the time that any such other corporations became a beneficial owner of
shares of stock of the Corporation possessing more than 10% of the voting
rights in elections of Directors.
C. For the purposes of this Article, any corporation, person or other
entity shall be deemed to be the beneficial owner of any shares of stock of the
Corporation which such entity has the right to acquire pursuant to any
agreement of upon exercise of conversion rights, warranties or options or
otherwise or which are beneficially owned, directly or indirectly, by any other
corporation, person or entity with which it or its "affiliate" or "associate",
as those terms are defined in Rule 12b-2 or the General Rules and Regulations
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under the Securities and Exchange Act of 1934 in effect January 1, 1970.
D. The Board of Directors of this Corporation shall have the power and
duty to determine for the purposes of this Article on the basis of information
known to the Corporation whether such other corporation, person or entity
beneficially owns more than 10% of the outstanding shares of stock of the
Corporation entitled to vote in elections of Directors, and whether it is an
affiliate or associate of another as defined above, and whether the agreement,
contract or understanding referred to in Subparagraph (e) of this Article is
substantially consistent with the transaction covered thereby. Any such
determination shall be conclusive and binding for all purposes of this Article.
E. The provisions of Subparagraph (a) of this Article shall further be
inapplicable to any of the transactions therein described if the Board of
Directors of this Corporation shall be resolution have approved a memorandum of
understanding with such other corporation with respect to and substantially
consistent with such transaction prior to the time that such other corporation
or entity shall have become a beneficial holder of more than 10% of the
outstanding shares of stock of this Corporation entitled to vote in election of
Directors.
F. No amendment to the Articles of Incorporation of this Corporation
shall amend, alter, change or repeal any of the provisions of this Article
unless the amendment affecting such amendment, alteration or repeal shall
receive the affirmative vote or consent of the holders of four-fifths of all
classes of the stock of the Corporation entitled to vote in elections of
Directors, considered for the purposes of this Article as one class.
ARTICLE V.
The Board of Directors of this Corporation shall consist of such number of
members as the By-Laws may provide, but not less than seven (7) members.
Members of the Board of Directors shall have such qualifications and shall be
elected in such manner, including division into classes for election, as may
from time to time be provided by the By-Laws of this Corporation.
ARTICLE VI.
The period of existence of this Corporation shall be perpetual.
ARTICLE VII.
The address of the registered office of this Corporation at the time of
the adoption of these Restated Articles of Incorporation is 1328 Racine Street,
Racine, Wisconsin, 53403, and the name of its registered agent at such address
James O. Parrish.
These Restated Articles of Incorporation shall supersede and take the
place of the heretofore existing Restated Articles of Incorporation of this
Corporation and any and all amendments thereto.
Signed and the corporate seal affixed on this 21st day of October, 1988.
______________________________
President and Chief
Executive Officer
Attest:
__________________________________
Secretary
[Seal]
This document was drafted by Attorney Clay R. Williams.