RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS OF
UNIVERSAL FOODS CORPORATION ON JUNE 25, 1998
RESOLVED FURTHER, that the Articles of Incorporation are
hereby amended as follows:
1. Subsection 3.1.2 of the Corporation's Articles of
Incorporation is amended by replacing the period following the
word "Stock" in the second line of said Subsection with a comma,
and by adding the following language to the end of said
Subsection:
"of which 100,000 shares are designated as
Series A Participating Cumulative Preferred
Stock pursuant to Section 4.7 hereof."
2. Section 4.7 Corporation's Articles of Incorporation
is created to read as follows:
Section 4.7. Series A Participating Cumulative Preferred
Stock:
Subsection 4.7.1. Designation and Amount.
The shares of such series shall be designated as
"Series A Participating Cumulative Preferred Stock"
(the "Series A Preferred Stock") and the number of
shares constituting the Series A Preferred Stock
shall be 100,000. Such number of shares may be
increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall
reduce the number of shares of Series A Preferred
Stock to a number less than the number of shares
then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion
of any outstanding securities issued by the
Corporation convertible into Series A Preferred
Stock.
Subsection 4.7.2. Dividends and
Distributions.
(A) Subject to the rights of the holders
of any shares of any series of Preferred Stock (or
any similar stock) ranking pari passu with the
Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock,
in preference to the holders of Common Stock, par
value $0.10 per share ("Common Shares"), of the
Corporation, and of any other junior 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 December,
March, June and September in each year (each such
date being referred to in this Section 4.7 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 Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends,
and 1,000 times the aggregate per share amount
(payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable
in Common Shares or a subdivision of the
outstanding Common Shares (by reclassification or
otherwise), declared on the Common Shares 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
Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on
the Common Shares payable in Common Shares, or
effect a subdivision or combination or
consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser
number of Common Shares, then in each such case the
amount to which holders of shares of Series A
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 Common Shares outstanding immediately
after such event and the denominator of which is
the number of Common Shares that were outstanding
immediately prior to such event.
(B) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such
shares, 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 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 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
Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to
the date fixed for the payment thereof.
Subsection 4.7.3. Voting Rights. The holders
of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for
adjustment hereinafter set forth, each share of
Series A 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 in
these Articles of Incorporation, in any other
Resolution of the Board of Directors creating a
series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred
Stock and the holders of Common Shares and any
other capital stock of the Corporation having
general voting rights shall vote together as one
class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as set forth in these
Articles of Incorporation or as otherwise provided
by law, holders of Series A 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 Shares
as set forth herein) for taking any corporate
action.
Subsection 4.7.4. Certain Restrictions.
(A) Whenever quarterly dividends or
other dividends or distributions payable on the
Series A 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 Preferred Stock
outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or
make any other distributions, on any shares of
stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends, 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 Preferred Stock, except dividends
paid ratably on the Series A 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 junior (either as to dividends or
upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior 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 Preferred Stock; or
(iv) redeem or purchase or otherwise
acquire for consideration any shares of Series A
Preferred Stock, or any shares of stock ranking on
a parity with the Series A 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.
Subsection 4.7.5. Reacquired Shares. Any
shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled 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
subject to the conditions and restrictions on
issuance set forth in these Articles of
Incorporation or in any other Resolution of the
Board of Directors creating a series of Preferred
Stock or any similar stock or as otherwise required
by law.
Subsection 4.7.6. Liquidation, Dissolution or
Winding Up. Upon any liquidation, dissolution or
winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall
have received $250 per share, plus an amount equal
to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of
such payment, provided that the holders of shares
of Series A Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to
the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount to be
distributed per share to holders of Common Shares,
or (2) to the holders of shares of stock ranking on
a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all
such parity stock in proportion to the total
amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common
Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common
Shares, then in each such case the aggregate amount
to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding
sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the
number of Common Shares outstanding immediately
after such event and the denominator of which is
the number of Common Shares that were outstanding
immediately prior to such event.
Subsection 4.7.7. Consolidation, Merger, etc.
In case the Corporation shall enter into any
consolidation, merger, combination or other
transaction in which the Common Shares are
exchanged for or changed into other stock or
securities, cash and/or any other property, then in
any such case each share of Series A Preferred
Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth,
equal to 1,000 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 Common Share is changed or exchanged.
In the event the Corporation shall at any time
declare or pay any dividend on the Common Shares
payable in Common Shares, or effect a subdivision
or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares)
into a greater or lesser number of Common 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 Preferred Stock shall
be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of
Common Shares outstanding immediately after such
event and the denominator of which is the number of
Common Shares that were outstanding immediately
prior to such event.
Subsection 4.7.8. No Redemption. The shares
of Series A Preferred Stock shall not be
redeemable.
Subsection 4.7.9. Rank. The Series A
Preferred Stock shall be of equal rank, with
respect to the payment of dividends and the
distribution of assets, to all series of any other
class of the Corporation's Cumulative Preferred
Stock.
Subsection 4.7.10. Amendment. These Articles
of Incorporation shall not be amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A
Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a
single class. In addition to the rights,
preferences and privileges accorded to the Series A
Preferred Stock in this Section 4.7, the Series A
Preferred Stock shall have the rights, privileges
and preferences, and be subject to the limitations,
accorded generally to the Cumulative Preferred
Stock in the foregoing Sections 4.1 through 4.6.
(As amended through 6/25/98)
UNIVERSAL FOODS CORPORATION
RESTATED
ARTICLES OF INCORPORATION
These Amended and Restated Articles of Incorporation, duly adopted
pursuant to Chapter 180 of the Wisconsin Statutes, supersede and take the
place of the existing Articles of Incorporation and all amendments
thereto.
ARTICLE I.
Name.
SECTION 1.1. Name.
The name of the corporation is UNIVERSAL FOODS CORPORATION.
ARTICLE II.
Purposes.
SECTION 2.1. Purposes.
The purposes for which the corporation is organized are to engage
in any lawful activity within the purposes for which corporations may be
organized under the Wisconsin Business Corporation Law.
ARTICLE III.
Capital Stock.
Section 3.1. Number of Shares and Classes.
The aggregate number of shares which the corporation has authority
to issue is 100,250,000 divided into the following classes:
Subsection 3.1.1. Common Stock. 100,000,000 shares at the par value
of $0.10 per share designated as "Common Stock."
Subsection 3.1.2. Cumulative Preferred Stock. 250,000 shares
without par value designated as "Cumulative Preferred Stock," of which
100,000 shares are designated as Series A Participating Cumulative
Preferred Stock pursuant to Section 4.7 hereof.
ARTICLE IV.
Preferences, Limitation and Relative Rights of
Cumulative Preferred Stock
SECTION 4.1. Dividends and Distributions on Cumulative Preferred
Stock.
Subsection 4.1.1. The holders of Cumulative Preferred Stock of
all series shall be entitled to receive dividends at such rates, upon
such conditions and at such times as shall be stated in the resolution or
resolutions of the Board of Directors providing for the issuance thereof
and not inconsistent with the provisions hereof.
Subsection 4.1.2. No dividend or other distribution, except a
dividend payable solely in Common Stock, shall be paid on Common Stock,
and no shares of Common Stock shall be purchased, redeemed or otherwise
acquired by the corporation for a consideration, otherwise than in
exchange for or through application of the proceeds of the sale of other
Common Stock, if the payment of such dividend or distribution on Common
Stock, or the making of any such purchase, redemption or other
acquisition of Common Stock, will result in reducing the Consolidated Net
Worth of the corporation below 150% of the aggregate involuntary
liquidation amounts of all outstanding shares of Cumulative Preferred
Stock.
Subsection 4.1.3. All dividends on Cumulative Preferred Stock
shall be without priority as between series, shall be paid out of net
earnings or any surplus properly applicable to the payment thereof, shall
be cumulative and shall be paid or set apart before any dividends or
other distributions shall be paid or set apart for Common Stock,
provided, however, that dividends may be declared and paid on Common
Stock in Common Stock of the corporation. Any dividends paid upon the
Cumulative Preferred Stock in an amount less than full cumulative
dividends accrued and in arrears upon all Cumulative Preferred Stock
outstanding shall, if more than one series be outstanding, be distributed
among the different series in proportion to the aggregate amounts which
would be distributable to the Cumulative Preferred Stock of each series
if full cumulative dividends were declared and paid thereon.
Subsection 4.1.4. The Cumulative Preferred Stock shall entitle
the holder thereof to receive, out of net profits of the corporation or
out of any surplus applicable to the payment of such dividends in each
fiscal year as declared at any time by the Board of Directors, dividends
at the rate fixed in the resolution or resolutions adopted by the Board
of Directors pursuant to which the issuance of such Cumulative Preferred
Stock shall be authorized. The dividends on the Cumulative Preferred
Stock shall be cumulative, so that if at any time the full amount of
dividends accrued and in arrears on the Cumulative Preferred Stock shall
not be paid, the deficiency shall be payable before any dividends or
other distributions shall be paid or set apart on the Common Stock, and
before any sums shall be paid or set apart for the redemption of less
than all of the Cumulative Preferred Stock then outstanding. Dividends
on Cumulative Preferred Stock shall accrue from date of issue. Whenever
all dividends accrued and in arrears on Cumulative Preferred Stock shall
have been declared and shall have been paid or set apart, the Board of
Directors may declare dividends on Common Stock out of the remaining net
profits of the corporation, or out of surplus applicable to the payment
of such dividends, subject to the restriction set forth in Subsection
4.1.2 hereof.
SECTION 4.2. Issuance of Preferred Stock.
Subsection 4.2.1. No stock having preference or priority in
rights or security over the Cumulative Preferred Stock may be issued
unless first approved by the affirmative vote of such majority of the
Cumulative Preferred Stock then outstanding as then required by law.
Subsection 4.2.2. No Cumulative Preferred Stock shall be issued
which, after giving effect to such issuance, would result in the
aggregate involuntary liquidation amount of all outstanding shares of
Cumulative Preferred Stock exceeding 66-2/3% of Consolidated Net Worth of
the corporation.
SECTION 4.3. Rights of Holders of Cumulative Preferred Stock on
Liquidation.
In the event of the voluntary liquidation or winding up of the
corporation, the holders of Cumulative Preferred Stock shall be entitled
to receive in full the fixed voluntary liquidation amount thereof plus
accrued dividends thereon, all as provided in the resolution or
resolutions providing for the issuance thereof, and no more, before any
amount shall be paid to the holders of Common Stock. In the event of the
involuntary liquidation of the corporation, the holders of the Cumulative
Preferred Stock shall be entitled to receive in full the fixed
involuntary liquidation amount thereof, plus accrued dividends thereon,
all as provided in the resolution or resolutions providing for the
issuance thereof, and no more, before any amount shall be paid to the
holders of Common Stock. The holders of all series of Cumulative
Preferred Stock shall be entitled to receive all amounts described in the
preceding provisions of this Section 4.3 out of the assets of the
corporation, whether from capital, surplus or earnings. As used in this
Section 4.3 "accrued dividends" means, in respect to each share of
Cumulative Preferred Stock, an amount equal to the fixed dividend rate
per annum for each share (without interest thereon), from the date from
which cumulative dividends commenced to accrue in respect of such share
to the date as of which the computation is to be made, less the aggregate
amount (without interest) of all dividends paid thereon or declared and
set aside for payment in respect thereof, whether or not any such
dividends shall have been earned. If, upon any such voluntary or
involuntary liquidation, the assets of the corporation distributable as
aforesaid among the holders of the Cumulative Preferred Stock shall be
insufficient to permit payment to them of the full preferential amounts
aforesaid, then the entire assets of the corporation available for
distribution to shareholders shall be distributed ratably among the
holders of Cumulative Preferred Stock in proportion to the full
preferential amounts to which they are respectively entitled.
The holders of Cumulative Preferred Stock shall not otherwise be
entitled to participate in any distribution of assets of the corporation
which shall be divided and distributed among the holders of Common Stock
according to their respective rights and preferences. No consolidation
or merger of the corporation with or into another corporation or
corporations and no sale by the corporation of all or substantially all
of its assets shall be deemed a liquidation or winding up of the
corporation within the meaning of this Section 4.3.
SECTION 4.4. Voting Rights of Cumulative Preferred Stock.
The holders of the Cumulative Preferred Stock shall, together with
the holders of Common Stock (neither the Cumulative Preferred Stock nor
the Common Stock voting as a class), possess full voting rights for the
election of directors and for other purposes, and for such purposes the
holders of Cumulative Preferred Stock shall, subject to the provisions of
the Bylaws of the corporation and of the Wisconsin Business Corporation
Law relative to the fixing of the record date, be entitled to one vote
for each share held by them respectively.
SECTION 4.5. Directors' Authority to Establish Series of Cumulative
Preferred Stock.
The Cumulative Preferred Stock may be issued in series from time
to time, with such designations, preferences and other rights,
qualifications, limitations or restrictions thereof as shall be stated
and expressed in the resolution or resolutions providing for the issuance
of such series and adopted by the Board of Directors pursuant to the
authority hereby given as provided by the Wisconsin Business Corporation
Law and not inconsistent with the provisions hereof. Without limiting
the authority granted to the Board of Directors in this Section, each
series shall have such (a) rate of dividend; (b) price at and terms and
conditions on which shares may be redeemed; (c) amount payable upon
shares in event of voluntary or involuntary liquidation; (d) sinking fund
provisions for the redemption or purchase of shares; and (e) terms and
conditions on which shares may be converted, if the shares of any series
are issued with the privilege of conversion; as shall be stated or
expressed in the resolution or resolutions of the Board of Directors
providing for the issuance thereof.
SECTION 4.6. Definitions.
Subsection 4.6.1. The term "Consolidated Net Worth" of the
corporation shall mean the Consolidated Net Worth of the corporation and
all of its subsidiaries determined on a consolidated basis in accordance
with generally accepted accounting principles.
Subsection 4.6.2. The term "Subsidiary" shall mean any
corporation or association of which not less than a majority of the
capital stock or shares (having the power in all events to vote for the
election of directors or trustees) is owned and controlled by the
corporation either directly or through another Subsidiary.
SECTION 4.7. Series A Participating Cumulative Preferred Stock:
Subsection 4.7.1. Designation and Amount. The shares of such
series shall be designated as "Series A Participating Cumulative
Preferred Stock" (the "Series A Preferred Stock") and the number of
shares constituting the Series A Preferred Stock shall be 100,000. Such
number of shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Subsection 4.7.2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking pari passu with
the Series A Preferred Stock with respect to dividends, the holders of
shares of Series A Preferred Stock, in preference to the holders of
Common Stock, par value $0.10 per share ("Common Shares"), of the
Corporation, and of any other junior 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 December, March, June and September in each year (each such
date being referred to in this Section 4.7 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
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in Common Shares or a
subdivision of the outstanding Common Shares (by reclassification or
otherwise), declared on the Common Shares 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 Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Shares
payable in Common Shares, or effect a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater
or lesser number of Common Shares, then in each such case the amount to
which holders of shares of Series A 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 Common Shares outstanding immediately
after such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event.
(B) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
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 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 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 Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
Subsection 4.7.3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A 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 in these Articles of
Incorporation, in any other Resolution of the Board of Directors creating
a series of Preferred Stock or any similar stock, or by law, the holders
of shares of Series A Preferred Stock and the holders of Common Shares
and any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth in these Articles of Incorporation or
as otherwise provided by law, holders of Series A 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
Shares as set forth herein) for taking any corporate action.
Subsection 4.7.4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A 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 Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, 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 Preferred Stock, except dividends paid ratably on the Series A
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 junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior 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 Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A 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.
Subsection 4.7.5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled 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 subject to the
conditions and restrictions on issuance set forth in these Articles of
Incorporation or in any other Resolution of the Board of Directors
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Subsection 4.7.6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have received $250
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 1,000 times
the aggregate amount to be distributed per share to holders of Common
Shares, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled
upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Shares payable in Common Shares, or effect a subdivision or combination
or consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater
or lesser number of Common Shares, then in each such case the aggregate
amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1)
of the preceding sentence shall be adjusted by multiplying such amount by
a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is
the number of Common Shares that were outstanding immediately prior to
such event.
Subsection 4.7.7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the Common Shares are exchanged for or changed
into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall at the same
time be similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 1,000
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 Common Share is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Shares
payable in Common Shares, or effect a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater
or lesser number of Common 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 Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of Common
Shares outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding immediately
prior to such event.
Subsection 4.7.8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Subsection 4.7.9. Rank. The Series A Preferred Stock shall be of
equal rank, with respect to the payment of dividends and the distribution
of assets, to all series of any other class of the Corporation's
Cumulative Preferred Stock.
Subsection 4.7.10. Amendment. These Articles of Incorporation
shall not be amended in any manner which would materially alter or change
the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series A
Preferred Stock, voting together as a single class. In addition to the
rights, preferences and privileges accorded to the Series A Preferred
Stock in this Section 4.7, the Series A Preferred Stock shall have the
rights, privileges and preferences, and be subject to the limitations,
accorded generally to the Cumulative Preferred Stock in the foregoing
Sections 4.1 through 4.6.
ARTICLE V.
Pre-emptive Rights.
SECTION 5.1. Pre-emptive Rights.
No holder of any class of stock of the corporation shall, because
of his ownership of said stock, have any pre-emptive or other right to
purchase, or subscribe for, or take any part of any class of stock, or
any part of the notes, debentures, bonds or other securities convertible
into or carrying options or warrants to purchase any class of stock of
this corporation.
ARTICLE VI.
Registered Office; Registered Agent.
SECTION 6.1 Registered Office; Registered Agent.
The address of the registered office of the corporation is 433
East Michigan Street, Milwaukee, Wisconsin 53202, and the registered
agent at the registered office of the corporation is Terrence M.
O'Reilly.
ARTICLE VII.
Directors; Removal of Directors.
SECTION 7.1. Directors.
The number of directors constituting the Board of Directors of the
corporation shall be fixed from time to time by the Bylaws of the
corporation. The Board of Directors of the corporation shall be divided
into three (3) classes. The term of office of the first class of
directors shall expire at the first annual meeting after their election,
the term of office of the second class shall expire at the second annual
meeting after their election and that of the third class shall expire at
the third annual meeting after their election. At each annual meeting
after classification of the Board of Directors, the class of directors
whose term expires at the time of such election shall be elected to hold
office until the third succeeding annual meeting. The number of
directors in each class shall be as fixed from time to time in the
Bylaws.
SECTION 7.2 Removal of Directors.
A director may be removed from office by affirmative vote of two
thirds (2/3) of the outstanding shares entitled to vote for the election
of such director, taken at a meeting of shareholders called for that
purpose, and any vacancy so created may be filled by such shareholders.
ARTICLE VIII.
Acquisition of Shares.
SECTION 8.1 Acquisition of Shares.
The corporation is authorized by action of the Board of Directors
without consent of shareholders to purchase, take, receive or otherwise
acquire shares of the corporation subject to the provisions of Section
180.0640(3) of the Wisconsin Statutes and Section 4.1.2 hereof.
ARTICLE IX.
Distributions.
SECTION 9.1 Distributions.
The Board of Directors may from time to time distribute to
shareholders in partial liquidation out of stated capital or net capital
surplus of the corporation, a portion of its assets, in cash or property.
ARTICLE X.
Repurchase of Common Stock.
SECTION 10.1 Repurchase Rights.
Subsection 10.1.1. In the event that any person (Acquiring
Person) (i) who is the beneficial owner, directly or indirectly, of more
than fifty percent of the Common Stock outstanding becomes the beneficial
owner, directly or indirectly, of any additional Common Stock pursuant to
a tender offer or (ii) becomes the beneficial owner, directly or
indirectly, of more than fifty percent of the Common Stock outstanding
and any of such Common Stock was acquired pursuant to a tender offer,
each holder of Common Stock, other than the Acquiring Person or a
transferee of the Acquiring Person, shall have the right until and
including the thirtieth day following the date the notice to holders of
Common Stock referred to in Section 10.3 herein is mailed to have the
Common Stock held by such holder repurchased by the corporation at the
Repurchase Price determined as provided in Section 10.5 herein, and each
holder of securities convertible into Common Stock or of options,
warrants, or rights exercisable to acquire Common Stock prior to such
thirtieth day, other than the Acquiring Person or a transferee of the
Acquiring Person, shall have the right simultaneously with the conversion
of such securities or exercise of such options, warrants, or rights to
have the Common Stock to be received thereupon by such holder repurchased
by corporation at the Repurchase Price.
Subsection 10.1.2. All repurchase rights hereunder shall be
subject to, and limited by, any provision contained in the Wisconsin
Statutes, in Article 4 hereof, or in any loan agreement entered into at
any time by the corporation, which limits the amounts which may be used
by the corporation to repurchase Common Stock of the corporation.
Subsection 10.1.3. No holder of Common Stock of the corporation
shall have any right to have Common Stock repurchased by the corporation
pursuant to this Article 10 if the corporation, acting through a majority
of its Board of Directors, shall within ten (10) days following the
announcement or publication of such tender offer or following any
amendment of such tender offer recommend to the holders of Common Stock
that such tender offer be accepted.
SECTION 10.2 Definitions.
Subsection 10.2.1. The term "person" shall include an
individual, a corporation, partnership, trust or other entity. When two
or more persons act as a partnership, limited partnership, syndicate, or
other group for the purpose of acquiring Common Stock, such partnership,
syndicate or group shall be deemed a "person".
Subsection 10.2.2. For the purpose of determining whether a
person is an Acquiring Person, such person shall be deemed to
beneficially own (i) all Common Stock with respect to which such person
has the capability to control or influence the voting power in respect
thereof and (ii) all Common Stock which such person has the immediate or
future right to acquire, directly or indirectly, pursuant to agreements,
through the exercise of options, warrants or rights or through the
conversion of convertible securities or otherwise; and all Common Stock
which such person has the right to acquire in such manner shall be deemed
to be outstanding shares, but Common Stock which any other person has
the right to acquire in such manner shall not be deemed to be outstanding
shares.
Subsection 10.2.3. The acquisition of Common Stock by the
corporation or by any person controlled by the corporation shall not
engender the right to have Common Stock repurchased pursuant to this
Article.
Subsection 10.2.4. The right to have Common Stock repurchased
pursuant to this Article shall attach to such shares and shall not be
personal to the holder thereof.
Subsection 10.2.5. The term "tender offer" shall mean an offer to
acquire or an acquisition of Common Stock pursuant to a request or
invitation for tenders or an offer to purchase such shares for cash,
securities or any other consideration.
Subsection 10.2.6. The term "market purchases" shall mean the
acquisition of Common Stock from holders of such shares in privately
negotiatied transactions or in transactions effected through a broker or
deal.
Subsection 10.2.7. Subject to the provisions of Section 10.2.2
herein, "outstanding shares" shall mean shares of Common Stock which at
the time in question have been issued by the corporation and not
reacquired and held or retired by it or held by any subsidiary of the
corporation.
SECTION 10.3 Repurchase Procedure.
Not later than thirty (30) days following the date on which the
corporation receives credible notice that any person has become an
Acquiring Person whereupon the right shall be engendered to have Common
Stock repurchased by the corporation under this Article 10, the
corporation shall give written notice, by first class mail, postage
prepaid, at the address shown on the records of the corporation, to each
holder of record of Common Stock (and to any other person known by the
corporation to have rights to demand repurchase pursuant to Section 10.1
of this Article) as of a date not more than seven (7) days prior to the
date of the mailing pursuant to this Section 10.3 and shall advise each
such holder of the right to have shares repurchased and the procedures
for such repurchase. In the event that the corporation fails to give
notice as required by this Section 10.3, any holder entitled to receive
such notice may within thirty (30) days thereafter serve written demand
upon the corporation to give such notice. If within thirty (30) days
after the receipt of written demand the corporation fails to give the
required notice, such holder may at the expense and on behalf of the
corporation take such reasonable action as may be appropriate to give
notice or to cause notice to be given pursuant to this Section 10.3.
Subsection 10.3.1. In the event Common Stock are subject to
repurchase in accordance with this Article 10, the directors of the
corporation shall designate a Repurchase Agent, which shall be a
corporation or association (i) organized and doing business under the
laws of the United States or any State, (ii) subject to supervision or
examination by Federal or State authority, (iii) having combined capital
and surplus of at least $5,000,000 and (iv) having the power to exercise
corporate trust powers.
Subsection 10.3.2. For a period of ninety days from the date of
the mailing of the notice to holders of Common Stock referred to in this
Section l0.3, holders of Common Stock and other persons entitled to have
Common Stock repurchased pursuant to this Article l0 may, at their
option, deposit certificates representing all or less than all Common
Stock held of record by them with the Repurchase Agent together with
written notice that the holder elects to have such shares repurchased
pursuant to this Article 10. Repurchase shall be deemed to have been
effected at the close of business on the day such certificates are
deposited in proper form with the Repurchase Agent.
Subsection 10.3.3. The corporation shall promptly deposit in
trust with the Repurchase Agent cash in an amount equal to the aggregate
Repurchase Price of all of the Common Stock deposited with the Repurchase
Agent for purposes of repurchase.
Subsection 10.3.4. As soon as practicable after receipt by the
Repurchase Agent of the cash deposit by the corporation referred to in
this Section 10.3, the Repurchase Agent shall issue its checks payable to
the order of the persons entitled to receive the Repurchase Price of the
Common Stock in respect of which such cash deposit was made.
Subsection 10.3.5 In the event the corporation is unable to
deposit with the Repurchase Agent cash in the full amount of the
aggregate Repurchase Price of all shares deposited for repurchase,
because of limitations upon repurchase of Common Stock contained in the
Wisconsin Statutes, in Article 4 hereof, or in any loan agreement entered
into at any time by the corporation, the corporation shall promptly
deposit with the Repurchase Agent the maximum amount of cash which may be
used for the repurchase of Common Stock, under the most restrictive of
the applicable limitations upon such repurchase. In the event of deposit
of less than the full aggregate Repurchase Price pursuant to the
provisions of this subsection, the Repurchase Agent shall use the amount
so deposited to repurchase the deposited shares pro tanto, in proportion
to the number of shares deposited by each shareholder for repurchase.
Certificates representing all shares which remain unpurchased shall be
returned to the depositors thereof as soon as practicable thereafter, and
there shall be no further repurchase rights with respect to such shares
arising in connection with the transactions already completed.
SECTION 10.4. Retired Stock.
All Common Stock with respect to which repurchase has been
effected pursuant to this Article 10 shall thereupon be deemed retired.
SECTION 10.5. Repurchase Price.
(a) The Repurchase Price shall be the amount payable by the
corporation in respect of each share of Common Stock with respect to
which repurchase has been demanded pursuant to this Article 10 and shall
be the greatest amount determined on any of the following three bases:
(i) The highest price per share of Common Stock,
including any commission paid to brokers or dealers for
solicitation or whatever, at which Common Stock held by
the Acquiring Person were acquired pursuant to a tender
offer regardless of when such tender offer was made or
were acquired pursuant to any market purchase or
otherwise within eighteen months prior to the notice to
holders of Common Stock referred to in Section 3 herein.
For purposes of this subsection (i), if the consideration
paid in any such acquisition of Common Stock consisted,
in whole or part, of consideration other than cash, the
Board of Directors of the corporation shall take such
action, as in its judgment it deems appropriate, to
establish the cash value of such consideration, but such
valuation shall not be less than the cash value, if any,
ascribed to such consideration by the Acquiring Person.
(ii) The highest sale price per share of Common
Stock for any trading day during the eighteen months
prior to the notice to holders of Common Stock referred
to in Section l0.3 herein. For purposes of this
subsection (ii), the sale price for any trading day shall
be the last sale price per share of Common Stock traded
on the New York Stock Exchange or other national
securities exchange, or, if Common Stock of the
corporation is not then traded on a national securities
exchange, the mean of the closing bid and asked price per
share of Common Stock.
(iii) The amount of shareholders' equity in respect
of each outstanding share of Common Stock as determined
in accordance with generally accepted accounting
principles and as reflected in any published report by
the corporation as at the fiscal year quarter ending
immediately preceding the notice to shareholders referred
to in Section 10.3 herein.
Subsection 10.5.1. The determinations to be made pursuant to
Section 10.5 shall be made by the Board of Directors not later than the
date of the notice to holders of Common Stock referred to in Section 10.3
herein. In making such determination the Board of Directors may engage
such persons, including investment banking firms and the independent
accountants, who have reported on the most recent financial statements of
the corporation, and utilize employees and agents of the corporation, who
will, in the judgment of the Board of Directors, be of assistance to the
Board of Directors.
Subsection 10.5.2. The determinations to be made pursuant to this
Section 10.5, when made by the Board of Directors acting in good faith on
the basis of such information and assistance as was then reasonably
available for such purpose, shall be conclusive and binding upon the
corporation and its shareholders, including any person referred to in
Section 10.1 herein.