EXHIBIT 3.01
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF SCRIPPS HOWARD, INC.
FIRST: Name. The name of the Corporation is Scripps Howard, Inc.
(the "Corporation").
SECOND: Principal Office. The place in the State of Ohio where the
principal office of the Corporation is to be located is Cincinnati,
Hamilton County.
THIRD: Purpose. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be formed under
Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
FOURTH: Classes and Number of Shares. The total number of shares of
all classes of stock that the Corporation shall have authority to
issue is 175,000,000 shares. The classes and the aggregate number of
shares of stock of each class that the Corporation shall have
authority to issue are as follows:
(i) 30,000,000 Common Voting Shares, $0.01 par value ("Common
Voting Shares").
(ii) 120,000,000 Class A Common Shares, $0.01 par value ("Class A
Common Shares").
(iii) 25,000,000 Preferred Shares, $0.01 par value ("Preferred
Shares").
The 750 Common Shares, without par value, of the Corporation
heretofore authorized, issued and outstanding are hereby changed into
375 Common Voting Shares and 375 Class A Common Shares.
Powers and Rights of the Common Voting Shares and the Class A Common
Shares.
1. Election of Directors. Holders of Class A Common Shares, voting
separately and as a class, shall be entitled to elect the greater of
three or one-third (or the nearest smaller whole number if the
aforesaid fraction is not a whole number) of the directors of the
Corporation to be elected from time to time except directors, if any,
to be elected by holders of Preferred Shares or any series thereof;
and holders of Common Voting Shares, voting separately and as a class,
shall be entitled to elect the balance of such directors.
2. Other Matters. Except as provided in this Article FOURTH with
respect to Class A Common Shares or in any resolution providing for
the issue of Preferred Shares or any series thereof, and as otherwise
required by the Ohio Revised Code, the entire voting power shall be
vested solely and exclusively in the holders of the Common Voting
Shares, the holders of Common Voting Shares to be entitled to one vote
for each Common Voting Share held by them upon all matters requiring a
vote of shareholders of the Corporation, and the holders of Preferred
Shares or any series thereof or Class A Common Shares shall have no
voting power and shall not have the right to participate in any
meeting of shareholders or to have notice thereof. The number of
authorized Class A Common Shares may be increased or decreased (but
not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the outstanding
Common Voting Shares.
3. Dividends and Distributions. At any time Common Voting Shares
are outstanding, as and when dividends or other distributions payable
in either cash, capital stock of the Corporation (other than Class A
Common Shares or Common Voting Shares) or other property of the
Corporation may be declared by the Board of Directors, the amount of
any such dividend payable on each of the Class A Common Shares shall
be equal in all cases to the amount of such dividend payable on each
of the Common Voting Shares, and the amount of any such dividend
payable on each of the Common Voting Shares shall be equal in all
cases to the amount of the dividend payable on each of the Class A
Common Shares. Dividends and distributions payable in Common Voting
Shares may not be made on or to shares of any class of the
Corporation's capital stock other than the Common Voting Shares and
dividends payable in Class A Common Shares may not be made on or to
shares of any class of the Corporation's capital stock other than the
Class A Common Shares. If a dividend or distribution payable in Class
A Common Shares shall be made on the Class A Common Shares, a dividend
or distribution payable in Common Voting Shares shall be made
simultaneously on the Common Voting Shares, and the number of Common
Voting Shares payable on each of the Common Voting Shares pursuant to
such dividend or distribution shall be equal to the number of Class A
Common Shares payable on each of the Class A Common Shares pursuant to
such dividend or distribution.
In the case of any dividend or other distribution payable in stock of
any corporation which just prior to the time of the distribution is a
wholly owned subsidiary of the Corporation and which possesses
authority to issue class A common shares and common voting shares with
voting characteristics identical to those of the Class A Common Shares
and the Common Voting Shares, respectively, provided in these Amended
and Restated Articles of Incorporation, including a distribution
pursuant to a stock dividend, a stock split or division of stock of
the Corporation, or a spin-off or split-up reorganization of the
Corporation, only class A common shares of such subsidiary shall be
distributed with respect to Class A Common Shares and only common
voting shares of such subsidiary shall be distributed with respect to
Common Voting Shares.
4. Distribution of Assets Upon Liquidation. In the event the
Corporation shall be liquidated, dissolved or wound up, whether
voluntarily or involuntarily, after there shall have been paid or set
aside for the holders of all Preferred Shares then outstanding the
full preferential amounts to which they are entitled under the
resolutions authorizing the issuance of such Preferred Shares, the net
assets of the Corporation remaining shall be divided among the holders
of the Class A Common Shares and Common Voting Shares in such a manner
that the amount of such net assets distributed to each of the Class A
Common Shares shall be equal to the amount of such assets distributed
to each of the Common Voting Shares.
5. Issuance of Common Voting Shares. Common Voting Shares may be
issued (i) in accordance with and pursuant to the terms of the
Contribution and Assumption Agreement to be entered into by and
between the Corporation and The E.W. Scripps Company, a Delaware
corporation ("EWSCO"), pursuant to the Agreement and Plan of Merger
among EWSCO, the Corporation, and Comcast Corporation, a Pennsylvania
corporation, dated October 28, 1995, as it may be amended, or (ii) in
the form of a distribution or distributions pursuant to a stock
dividend or division or split-up of the Common Voting Shares and only
then in respect of the issued Common Voting Shares.
6. Preemptive Rights of Common Voting Shares. Holders of shares of
Common Voting Shares shall have the preemptive right to subscribe to
any additional issue of stock of any class of the Corporation or any
series thereof that by its express terms and provisions grants
general, continuous and unconditional voting rights to the holders
thereof and to any class of securities of the Corporation convertible
into any such stock or series thereof. Except as set forth in the
first sentence of this Section 6, no holder of shares of the
Corporation of any class shall be entitled as such, as a matter of
right, to subscribe for or purchase shares of any class, now or
hereafter authorized, or to subscribe for or purchase securities
convertible into or exchangeable for shares of the Corporation or to
which shall be attached or appertain any warrants or rights entitling
the holder thereof to subscribe for or purchase shares, except such
rights of subscription or purchase, if any, for such considerations
and upon such terms and conditions as its Board of Directors from time
to time may determine.
7. Conversion of Common Voting Shares. Each Common Voting Share may
at any time be converted at the election of the holder thereof into
one Class A Common Share. Any holder of Common Voting Shares may
elect to convert any or all of such shares at one time or at various
times in such holder's discretion. Such right shall be exercised by
the surrender of the certificate representing each Common Voting Share
to be converted to the Corporation at its principal executive offices,
accompanied by a written notice of the election by the holder thereof
to convert and (if so required by the Corporation) by instruments of
transfer, in form satisfactory to the Corporation, duly executed by
such holder or his duly authorized attorney. The issuance of a
certificate or certificates for the Class A Common Shares upon
conversion of Common Voting Shares shall be made without charge for
any stamp or other similar tax in respect of such issuance. However,
if any such certificate or certificates are to be issued in a name
other than that of the holder of Common Voting Shares to be converted,
the person or persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax which may be payable in respect of
any such transfer, or shall establish to the satisfaction of the
Corporation that such tax has been paid. As promptly as practicable
after the surrender for conversion of a certificate or certificates
representing Common Voting Shares and the payment of any tax as
hereinabove provided, the Corporation will deliver to, or upon the
written order of, the holder of such certificate or certificates, a
certificate or certificates representing the number of Class A Common
Shares issuable upon such conversion, issued in such name or names as
such holder may direct. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of the
surrender of the certificate or certificates representing Common
Voting Shares (or, if on such date the transfer books of the
Corporation shall be closed, then immediately prior to the close of
business on the first date thereafter that such books shall be open),
and all rights of such holder arising from ownership of Common Voting
Shares shall cease at such time, and the person or persons in whose
name or names the certificate or certificates representing Class A
Common Shares are to be issued shall be treated for all purposes as
having become the record holder or holders of such Class A Common
Shares at such time and shall have and may exercise all the rights and
powers appertaining thereto. No adjustments in respect of past cash
dividends shall be made upon the conversion of any Common Voting
Shares; provided that if any Common Voting Shares shall be converted
into Class A Common Shares subsequent to the record date for the
payment of a dividend or other distribution on Common Voting Shares
but prior to such payment, the registered holder of such Common Voting
Shares at the close of business on such record date shall be entitled
to receive on the payment date, with respect to the Class A Common
Shares received upon such conversion, the dividend or other
distribution which would have been payable had such Class A Common
Shares been outstanding and held of record on such dividend record
date by the registered holder on such dividend record date of the
Common Voting Shares so converted in lieu of the dividend otherwise
payable on the Common Voting Shares so converted. The Corporation
shall at all times reserve and keep available, solely for the purpose
of issuance upon conversion of outstanding Common Voting Shares, such
number of Class A Common Shares as may be issuable upon the conversion
of all such outstanding Common Voting Shares; provided that the
Corporation may deliver Class A Common Shares which are held in the
treasury of the Corporation for any Common Voting Shares to be
converted. If registration with or approval of any governmental
authority under any federal or state law is required before such Class
A Common Shares may be issued upon such conversion, the Corporation
will endeavor to cause such shares to be duly registered or approved,
as the case may be. The Corporation will endeavor to list Class A
Common Shares required to be delivered upon conversion prior to such
delivery upon any national securities exchange or national market
system on which the outstanding Class A Common Shares may be listed at
the time of such delivery. All Class A Common Shares which may be
issued upon conversion of Common Voting Shares will, upon issuance, be
fully paid and nonassessable. The aggregate amount of stated capital
represented by Class A Common Shares issued upon conversion of Common
Voting Shares shall be the same as the aggregate amount of stated
capital represented by the Common Voting Shares so converted. When
Common Voting Shares have been converted, they shall have the status
of retired shares.
8. Other Rights. Except as otherwise required by the Ohio Revised
Code or as otherwise provided in these Amended and Restated Articles
of Incorporation, each Class A Common Share and each Common Voting
Share shall have identical powers, preferences and rights.
Powers and Rights of the Preferred Shares. The Preferred Shares shall
have the following express terms:
1. Series. The Preferred Shares may be issued from time to time in
one or more series. All Preferred Shares shall be of equal rank and
shall be identical, except in respect of the matters that may be fixed
by the Board of Directors as hereinafter provided, and each share of a
series shall be identical with all other shares of such series, except
as to the dates from which dividends shall accrue and be cumulative.
Subject to the provisions of Sections 2 through 6, inclusive, which
provisions shall apply to all Preferred Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) those rights, preferences and terms that
may be fixed by the Board of Directors, including the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series, which
number the Board of Directors may (except where otherwise
provided in the creation of the series) increase or decrease
from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);
(c) The dividend rate or rates of the series, including the
means by which such rates may be established;
(d) The date or dates from which dividends shall accrue and
be cumulative and the dates on which and the period or periods
for which dividends, if declared, shall be payable, including
the means by which such dates and periods may be established;
(e) The redemption rights and price or prices, if any, for
shares of the series;
(f) The terms and amount of the sinking fund, if any, for the
purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be convertible
into Class A Common Shares or Common Voting Shares (the Class
A Common Shares and Common Voting Shares being referred to
hereinafter in this Division B collectively as the "Common
Shares") or shares of any other class and, if so, the
conversion rate or rates or price or prices, any adjustments
thereof and all other terms and conditions upon which such
conversion may be made; and
(i) Restrictions, if any, on the issuance of shares of the
same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation
fixing, with respect to each such series, the matters described in
clauses (a) through (i), inclusive, of this Section and is authorized
to take such actions with respect thereto as may be required or
permitted by law in order to effect such amendments.
2. Dividends.
(a) The holders of Preferred Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Preferred Shares, shall
be entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 of this
Division B and no more, payable on the dates fixed for such
series. Such dividends shall accrue and be cumulative, in the
case of shares of a particular series, from and after the date
or dates fixed with respect to such series. No dividends
shall be paid upon or declared or set apart for any series of
the Preferred Shares for any dividend period unless at the
same time a like proportionate dividend for the dividend
periods terminating on the same or any earlier date, ratably
in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all
Preferred Shares of all series then issued and outstanding and
entitled to receive such dividend.
(b) So long as any Preferred Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Preferred Shares, shall be paid
or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking
junior to the Preferred Shares, nor shall any Common Shares or
any other shares ranking junior to the Preferred Shares be
purchased, retired or otherwise acquired by the Corporation,
except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the
Preferred Shares received by the Corporation subsequent to the
date of first issuance of Preferred Shares of any series,
unless:
(1) All accrued and unpaid dividends on Preferred Shares,
including the full dividends for all current dividend
periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(2) There shall be no arrearages with respect to the
redemption of Preferred Shares of any series from any
sinking fund provided for shares of such series in
accordance with the provisions of Section 1 of this
Division.
3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time, at the option of the Board of
Directors, redeem all or any part of any redeemable series
of Preferred Shares at the time outstanding at the
applicable redemption price for such series fixed in
accordance with the provisions of Section 1 of this
Division; and
(2) Shall, from time to time, make such redemptions of each
series of Preferred Shares as may be required to fulfill the
requirements of any sinking fund provided for shares of such
series at the applicable sinking fund redemption price fixed
in accordance with the provisions of Section 1 of this
Division; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Preferred
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Division prior to the issuance thereof. At any time
after notice as provided above has been deposited in the
mail, the Corporation may deposit the aggregate redemption
price of Preferred Shares to be redeemed, together with
accrued and unpaid dividends thereon to the redemption date,
with any bank or trust company having capital and surplus of
not less than $100,000,000, named in such notice and direct
that there be paid to the respective holders of the
Preferred Shares so to be redeemed amounts equal to the
redemption price of the Preferred Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on
surrender of the share certificate or certificates held by
such holders; and upon the deposit of such notice in the
mail and the making of such deposit of money with such bank
or trust company, such holders shall cease to be
shareholders with respect to such shares; and from and after
the time such notice shall have been so deposited and such
deposit of money shall have been so made, such holders shall
have no rights or claim against the Corporation with respect
to such shares, except only the right to receive such money
from such bank or trust company without interest or to
exercise before the redemption date any unexpired privileges
of conversion. In the event less than all of the
outstanding Preferred Shares are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed
in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Preferred Shares which have been called
for redemption shall not within six years after such deposit
claim the amount deposited for the redemption thereof, any
such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be relieved
of all responsibility in respect thereof and to such
holders.
(c) Any Preferred Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Preferred Shares without serial
designation.
4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Preferred Shares of any series
shall be entitled to receive in full out of the assets of
the Corporation, including its capital, before any amount
shall be paid or distributed among the holders of the Common
Shares or any other shares ranking junior to the Preferred
Shares, the amounts fixed with respect to shares of such
series in accordance with Section 1 of this Division, plus
an amount equal to all dividends accrued and unpaid thereon
to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up of the affairs of the
Corporation. In the event the net assets of the Corporation
legally available therefor are insufficient to permit the
payment upon all outstanding Preferred Shares of the full
preferential amount to which they are respectively entitled,
then such net assets shall be distributed ratably upon all
outstanding Preferred Shares, in proportion to the full
preferential amount to which each such share is entitled.
(2) After payment to the holders of Preferred Shares of the
full preferential amounts as aforesaid, the holders of
Preferred Shares, as such, shall have no right or claim to
any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or with
any other corporation, the merger of any other corporation
into it, or the sale, lease or conveyance of all or
substantially all the assets of the Corporation, shall not be
deemed to be a dissolution, liquidation or winding up for the
purposes of this Section.
Section 5. Voting. Holders of Preferred Shares shall have no voting
rights, except as otherwise from time to time required by law.
Section 6. Definitions. For the purpose of this Division:
(a) Whenever reference is made to shares "ranking prior to
the Preferred Shares," such reference shall mean and include
all shares of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over the rights of the
holders of Preferred Shares;
(b) Whenever reference is made to shares "on a parity with
the Preferred Shares," such reference shall mean and include
all other shares of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends
or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the
affairs of the Corporation rank equally (except as to the
amounts fixed therefor) with the rights of the holders of
Preferred Shares; and
(c) Whenever reference is made to shares "ranking junior to
the Preferred Shares," such reference shall mean and include
all shares of the Corporation other than those defined under
Subsections (a) and (b) of this Section as shares "ranking
prior to" or "on a parity with" the Preferred Shares.
Issuance of the Common Shares and the Preferred Shares.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all of the Common
Shares and the Preferred Shares herein authorized in accordance with
the terms and conditions set forth in these Amended and Restated
Articles of Incorporation for such purposes, in such amounts, to such
persons, corporations, or entities, for such consideration, and in the
case of the Preferred Shares, in one or more series, all as the Board
of Directors in its discretion may determine and without any vote or
other action by the shareholders, except as otherwise required by law.
FIFTH: Share Ownership.
A. Requests for Information. So long as the Corporation or any of
its subsidiaries holds authority from the Federal Communications
Commission ("FCC") (or any successor thereto) to operate any
television or radio broadcasting station, if the Corporation has
reason to believe that the ownership, or proposed ownership, of shares
of capital stock of the Corporation by any shareholder or any person
presenting any shares of capital stock of the Corporation for transfer
into his name (a "Proposed Transferee") may be inconsistent with, or
in violation of, any provision of the Federal Communication Laws (as
hereinafter defined) such shareholder or Proposed Transferee, upon
request of the Corporation, shall furnish promptly to the Corporation
such information (including, without limitation, information with
respect to citizenship, other ownership interests and affiliations) as
the Corporation shall reasonably request to determine whether the
ownership of, or the exercise of any rights with respect to, shares of
capital stock of the Corporation by such shareholder or Proposed
Transferee is inconsistent with, or in violation of, the Federal
Communication Laws. For purposes of this Article FIFTH, the term
"Federal Communication Laws" shall mean any law of the United States
now or hereafter in effect (and any regulation thereunder) pertaining
to the ownership of, or the exercise of rights of ownership with
respect to, capital stock of corporations holding, directly or
indirectly, television or radio station authorizations, including,
without limitation, the Communications Act of 1934, as amended (the
"Communications Act"), and regulations thereunder pertaining to the
ownership, or the exercise of the rights of ownership, of capital
stock of corporations holding, directly or indirectly, television or
radio station authorizations, by (i) aliens, as defined in or under
the Communications Act, as it may be amended from time to time, (ii)
persons and entities having interests in television or radio stations,
newspapers, and cable television systems or (iii) persons or entities,
unilaterally or otherwise, seeking direct or indirect control of the
Corporation, as construed under the Communications Act, without having
obtained any requisite prior Federal regulatory approval of such
control.
B. Denial of Rights; Refusal to Transfer. If any shareholder or
Proposed Transferee from whom information is requested should fail to
respond to such request pursuant to Division A of this Article FIFTH
or the Corporation shall conclude that the ownership of, or the
exercise of any rights of ownership with respect to, shares of capital
stock of the Corporation by such shareholder or Proposed Transferee,
could result in any inconsistency with or violation of the Federal
Communication Laws, the Corporation may refuse to permit the transfer
of shares of capital stock of the Corporation to such Proposed
Transferee or may suspend those rights of stock ownership the exercise
of which would result in any inconsistency with, or violation of, the
Federal Communication Laws, such refusal of transfer or suspension to
remain in effect until the requested information has been received or
until the Corporation has determined that such transfer, or the
exercise of such suspended rights, as the case may be, is permissible
under the Federal Communication Laws; and the Corporation may exercise
any and all appropriate remedies, at law or in equity, in any court of
competent jurisdiction, against any such shareholder or Proposed
Transferee, with a view towards obtaining such information or
preventing or curing any situation which would cause any inconsistency
with or violation of any provision of the Federal Communication Laws.
C. Legends. The Corporation may note on the certificates of its
capital stock that the shares represented by such certificates are
subject to the restrictions set forth in this Article FIFTH.
D. Certain Definitions. For purposes of this Article, the word
"person" shall include not only natural persons but partnerships,
associations, corporations, limited liability companies, joint
ventures and other entities, and the word "regulation" shall include
not only regulations but rules, published policies and published
controlling interpretations of an administrative agency or body
empowered to administer a statutory provision of the Federal
Communication Laws.
SIXTH: Deliberations of Directors. The Board of Directors of the
Corporation, when evaluating any offer of another party to make a
tender or exchange offer for any equity security of the Corporation,
to merge or consolidate the Corporation with another corporation or to
purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation, shall, in connection with
the exercise of its judgment in determining what is in the best
interests of the Corporation and its shareholders, give due
consideration to the effect of such a transaction on the integrity,
character and quality of the Corporation's operations, all other
relevant factors, including, without limitation, long-term as well as
short-term interests of the Corporation and shareholders (including,
without limitation, the possibility that these interests may be best
served by the continued independence of the Corporation), and the
social, legal, and economic effects on the employees, customers,
suppliers and creditors of the Corporation and its subsidiaries, on
the communities and geographical areas in which the Corporation and
its subsidiaries operate or are located, and on any of the businesses
and properties of the Corporation or any of its subsidiaries, as well
as such other factors as the directors deem relevant.
SEVENTH: Directors' Liability; Indemnification.
A. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she is or was a director or officer of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation (including a subsidiary of
the Corporation) or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as such a director, officer,
employee, trustee or agent, or in any other capacity while serving as
such a director, officer, employee, trustee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Ohio Revised Code, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment), against all expense, liability
and loss (including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to an
indemnitee who has ceased to be such a director, officer, employee,
trustee or agent and shall inure to the benefit of the indemnitee's
heirs, executors and administrators; provided, however, that, except
as provided in Division B of this Article SEVENTH with respect to
proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the board of directors of the
Corporation. The right to indemnification conferred in this Division
B shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that if the Ohio Revised Code requires,
an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be made
only upon delivery to the Corporation of an undertaking, by or on
behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which
there is no further right to appeal that such indemnitee is not
entitled to be indemnified for such expenses under this Section or
otherwise (hereinafter an "undertaking").
B. Right of Indemnitee to Bring Suit. If a claim for
indemnification pursuant to this Article SEVENTH is not paid in full
by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit or in a suit brought
by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any
suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a
right to an advancement of expenses) it shall be a defense that, and
in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in
the Ohio Revised Code. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement
of such a suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard
of conduct set forth in the Ohio Revised Code nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct shall create a
presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such suit brought by the indemnitee, be a
defense to such suit. In any suit brought by the indemnitee to
enforce a right hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be
indemnified or entitled to such advancement of expenses under this
Article SEVENTH or otherwise shall be on the Corporation.
C. Non-Exclusivity of Rights. The rights to indemnification and
advancement of expenses conferred in this Article SEVENTH shall not be
exclusive of any other right that any person may have or hereafter
acquire under any statute, certificate of incorporation, bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise.
D. Insurance. The Corporation may purchase and maintain insurance,
at its expense, to protect itself and any director, officer, employee,
trustee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense, liability or
loss under the Ohio Revised Code.
E. Indemnity Contracts. The Corporation may enter into contracts
from time to time with such of its directors, officers, agents or
employees and providing for such indemnification, insurance, and
advancement of expenses as the Board of Directors determines to be
appropriate.
EIGHTH: Meetings of the shareholders of the Corporation may be called
by the chairman of the board or the president, or by a majority of the
directors in office acting at a meeting or by written consent, or by
the holders of record of fifty percent (50%) of the outstanding Common
Voting Shares acting at a meeting or by written consent.
NINTH: The provisions of Sections 1701.831 and 1707.43 and Chapter
1704 of the Ohio Revised Code shall not apply to the Corporation.
TENTH: No shareholder of the Corporation may cumulate his voting
power in the election of directors.
ELEVENTH: Notwithstanding any provision of Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code, or any successor
statutes now or hereafter in force, requiring for the authorization or
taking of any action the vote or consent of the holders of shares
entitling them to exercise two-thirds or any other proportion of the
voting power of the Corporation or of any class or classes of shares
thereof, such action, unless otherwise expressly required by law or
these Amended and Restated Articles of Incorporation, may be
authorized or taken by the vote or consent of the holders of shares
entitling them to exercise a majority of the voting power of the
Corporation or of such class or classes of shares thereof.
TWELFTH: To the extent permitted by law, the Corporation, by action
of its Board of Directors, may purchase or otherwise acquire shares of
any class issued by it at such times, for such consideration and upon
such terms and conditions as the board of directors may determine.
THIRTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in these Amended and Restated
Articles of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights and powers conferred herein upon
shareholders, directors and officers are subject to this reservation.
FOURTEENTH: These Amended and Restated Articles of Incorporation
shall take the place of and supersede the Corporation's existing
Articles of Incorporation, as amended.