EXHIBIT 3.1
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB: 15-1915 (REV 90)
In compliance with the requirements of 15 Pa.C.S. Section 1915
(relating to articles of amendment), the undersigned business corporation,
desiring to amend its Articles, hereby states that:
1. The name of the corporation is:
Safeguard Scientifics, Inc.
2. The address of this corporation's current registered office in
this Commonwealth is:
800 The Safeguard Building
435 Devon Park Drive
Wayne, Pennsylvania 19087
Chester County
3. The statute by or under which it was incorporated is Act of
May 5, 1933, P.L. 364, as amended.
4. The date of its incorporation is: September 11, 1953.
5. The amendment shall be effective upon filing these Articles of
Amendment in the Department of State.
6. The amendment was adopted by the shareholders pursuant to
15 Pa.C.S. Section 1914 (a) and (b).
7. The amendment adopted by the corporation is set forth in full
in Exhibit A attached hereto and made a part hereof.
8. The restated Articles of Incorporation supersede the original
Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer thereof this 9th
day of May, 1996.
SAFEGUARD SCIENTIFICS, INC.
By: /s/ DONALD R. CALDWELL
--------------------------------
Donald R. Caldwell, President
AMENDED AND
RESTATED ARTICLES OF INCORPORATION
OF
SAFEGUARD SCIENTIFICS, INC.
The Articles of Incorporation of Safeguard Scientifics, Inc. are hereby
amended and restated in their entirety to read as follows:
1ST The name of the corporation is
SAFEGUARD SCIENTIFICS, INC.
2ND The location and post office address of its
registered office in this Commonwealth is 800 The Safeguard Building, 435 Devon
Park Drive, Wayne, Pennsylvania 19087.
3RD The purpose or purposes of the corporation are
To have unlimited power to engage in and do any lawful act concerning any or all
lawful business for which corporations may be incorporated under the
Pennsylvania Business Corporation Law, including, without limitation thereto,
the manufacture, purchase and sale of goods, wares and merchandise of every
class and description.
4TH The term of its existence is perpetual.
5TH The aggregate number of shares which the corporation
shall have authority to issue is 100,055,423 shares, divided into 100,000,000
shares of Common Stock, par value $.10 per share, and 55,423 shares of Preferred
Stock, par value $l0.00 per share.
Each share of Common and Preferred Stock shall be entitled to one vote
per share at all meetings of shareholders.
The Board of Directors shall have the power, by resolution, to issue
from time to time, the kinds of shares herein authorized.
The following is a statement in respect of the Preferred Stock:
PREFERRED SHARES
The shares of Preferred Stock may by resolution of the Board of
Directors, from time to time, be divided into and issued in one or more series,
each of which series shall be designated as to distinguish the shares thereof
from the shares of all other series and classes. All shares of the respective
series of Preferred Stock shall be identical except as to the following relative
rights and preferences, in respect of any or all of which there may be
variations between different series, namely, the rate of dividend, the right of
redemption and the price at, and the terms and conditions on which shares may be
redeemed, the amounts payable upon shares in event of voluntary or involuntary
liquidation, sinking fund provisions for the redemption or purchase of shares,
the right of conversion and the terms and conditions on which shares may be
converted in the event the shares of any series of Preferred Stock are issued
with the privilege of conversion. Different series of the Preferred Stock shall
not be construed to constitute different classes of shares for the purpose of
voting by classes under the Pennsylvania Business Corporation Law.
Except as may be provided by the resolution establishing and
designating such class or series, the Board of Directors is hereby authorized by
resolution to increase or decrease the authorized number of shares of each class
or series (but not below the number of shares thereof then outstanding).
6th (a) Except as set forth in paragraph (d) of this
Article 6th, the affirmative vote or consent in writing of the holders of 80% of
the voting power of all of the shares of stock of the corporation entitled to
vote in elections of directors shall be required:
(i) for a merger or consolidation of
this corporation or any subsidiary thereof with or
into any other corporation, or
(ii) for any sale or lease of all or any
substantial part of the assets of this corporation or
any subsidiary thereof to any other corporation,
person or other entity, or
(iii) for any sale or lease to this
corporation or any subsidiary thereof of any assets
(except assets having an aggregate fair market value
of less than $2,000,000) in exchange for voting
securities (or securities convertible into voting
securities or options, warrants, or rights to
purchase voting securities or securities convertible
into voting securities) of this corporation or any
subsidiary by any other corporation, person or other
entity,
if, as of the record date for the determination of shareholders entitled to
notice thereof and to vote thereon or consent thereto, such other corporation,
person or other entity which is party to such a transaction is the beneficial
owner, directly or indirectly, of 5% or more in number of shares of the
outstanding shares of any class of or shares of stock of this corporation
entitled to vote in elections of directors.
(b) For purposes of this Article 6th, any
corporation, person or other entity shall be deemed to be the beneficial owner
of any shares of stock of this corporation,
(i) which it owns directly, whether or
not of record, or
(ii) which it has the right to acquire
pursuant to any agreement or understanding or upon
exercise of conversion rights, warrants or options or
otherwise, whether or not presently exercisable, or
(iii) which are beneficially owned,
directly (including shares deemed to be owned through
application of clause (ii) above), by an "affiliate"
or "associate" as those terms are defined herein, or
(iv) which are beneficially owned,
directly or indirectly, by any other corporation,
person or entity (including any shares which such
other corporation, person or entity has the right to
acquire pursuant to any agreement or understanding or
upon exercise of conversion rights, warrants or
options or otherwise, whether or not presently
exercisable) with which it or its "affiliate" or
"associate" has any agreement or arrangement or
understanding for the purpose of acquiring, holding,
voting or disposing of shares of stock of this
corporation.
For the purposes of this Article 6th, the outstanding shares of stock
of this corporation shall include Convertible Preferred Stock, Series 10
issuable on the exchange of certificates of Safeguard Automotive Corporation
common stock, but shall not include any other shares which may be issuable
pursuant to any agreement or upon exercise of conversion rights, warrants,
options or otherwise.
For the purpose of this Article 6th, the term "affiliate" shall mean
any person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
corporation, person or other entity. The term "control" (including the terms
"controlling," "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a corporation, person or other
entity, whether through the ownership of voting securities, by contract or
otherwise.
For the purpose of this Article 6th, the term "associate" shall mean
(1) any corporation or organization (other than this corporation or a
majority-owned subsidiary of this corporation) of which such corporation, person
or other entity is an officer or partner or is, directly or indirectly, the
beneficial owner of ten percent (10%) or more of any class of equity securities,
(2) any trust or other estate in which such corporation, person or other entity
has a substantial beneficial interest or as to which such corporation, person or
entity serves as a trustee or in a similar fiduciary capacity, and (3) any
relative or spouse of such person, or any relative of such spouse, who has the
same home as such person.
(c) The Board of Directors shall have the power
and duty to determine for the purposes of this Article 6th on the basis of
information known to the Board of Directors of this corporation, whether
(i) such other corporation, person or
other entity beneficially owns more than 5% in number
of shares of the outstanding shares of any class of
stock of this corporation entitled to vote in
elections of directors,
(ii) a corporation, person or other
entity is an "affiliate" or "associate" (as defined
in paragraph (b) above) of another, and
(iii) the assets being acquired by this
corporation, or any subsidiary thereof, have an
aggregate fair market value of less than $2,000,000.
Any such determination shall be conclusive and binding for all purposes
of this Article 6th.
(d) The provisions of this Article 6th shall not
apply to any merger or other transaction referred to in this Article 6th with
any corporation, person or other entity if (1) the Board of Directors of this
corporation has approved a written agreement, memorandum of understanding, or
letter of intent with such other corporation, person or other entity with
respect to such transaction prior to the time that such other corporation,
person or other entity shall have become a beneficial owner of more than 5% in
number of shares of the outstanding shares of stock of any class of this
corporation entitled to vote in elections of directors, or (2) if such
transaction is otherwise approved by the Board of Directors of this corporation,
provided that a majority of the members of the Board of Directors voting for the
approval of such transaction were fully elected and acting members of the Board
of Directors prior to the time that such other corporation, person or other
entity shall have become a beneficial owner of more than 5% in number of shares
of the outstanding shares of stock of any class of this corporation entitled to
vote in elections of directors. In addition, the provisions of this Article 6th
shall not apply to any merger or other transaction referred to in this Article
6th with a subsidiary (which term shall mean a corporation of which a majority
of the outstanding shares of stock entitled to vote in elections of directors is
owned by this corporation directly, and/or indirectly through one or more
subsidiaries).
7th The corporation reserves the right to amend, alter, change or
repeal any provision contained in the Articles of Incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred upon
shareholders herein are granted subject to this reservation. Notwithstanding any
other provision of these Articles of Incorporation or the By-laws of this
corporation (and in addition to any other vote that may be required by law,
these Articles of Incorporation or the By-laws of this corporation), the
affirmative vote of the holders of 80% of the voting power of al1 shares of
stock of this corporation entitled to vote in elections of directors (considered
for this purpose as one class) shall be required to amend, alter, change or
repeal Article 6th or 7th of these Articles of Incorporation.
8th (a) Effective December 23, 1983, section 910 of the
Pennsylvania Business Corporation Law of 1933 (added by Pennsylvania Act No.
1983-92 enacted on December 23, 1983) or any corresponding provision of
succeeding law shall not be applicable to this corporation.
(b) Paragraph (a) of this Article 8th shall cease to be
operative as part of the Articles of Incorporation of the corporation upon the
adoption of the Board of Directors of this corporation of a resolution to that
effect.
(c) Article VIII of the By-laws of the corporation,
adopted February 7, l984, is hereby rescinded.
9th Duties and Liabilities of Directors and Officers.
Section 1. Directors and officers as fiduciaries. A director or
officer of the corporation shall stand in a fiduciary relation to the
corporation and shall perform his or her duties as a director or officer,
including his or her duties as a member of any committee of the board upon which
he or she may serve, in good faith, in a manner he or she reasonably believes to
be in the best interests of the corporation, and with such care, including
reasonable inquiry, skill and diligence, as a person of ordinary prudence would
use under similar circumstances. In performing his or her duties, a director or
officer shall be entitled to rely in good faith on information, opinions,
reports or statements, including financial statements and other financial data,
in each case prepared or presented by: (a) one or more officers or employees of
the corporation whom the director or officer reasonably believes to be reliable
and competent with respect to the matters presented, (b) counsel, public
accountants or other persons as to matters that the director or officer
reasonably believes to be within the professional or expert competence of such
person, or (c) a committee of the Board of Directors upon which the director or
officer does not serve, duly designated in accordance with law, as to matters
within its designated authority, which committee the director or officer
reasonably believes to merit confidence. A director or officer shall not be
considered to be acting in good faith if he or she has knowledge concerning the
matter in question that would cause his or her reliance to be unwarranted.
Absent breach of fiduciary duty, lack of good faith or self-dealing, actions
taken as a director or officer of the corporation or any failure to take any
action shall be presumed to be in the best interests of the corporation.
Section 2. Personal liability of directors. A director of the
corporation shall not be personally liable for monetary damages as such
(including, without limitation, any judgment, amount paid in settlement,
penalty, punitive damages or expense of any nature (including, without
limitation, attorneys' fees and disbursements)) for any action taken, or any
failure to take any action, unless the director has breached or failed to
perform the duties of his or her office under these Articles of Incorporation,
the By-laws of the corporation or applicable provisions of law and the breach or
failure to perform constitutes self-dealing, willful misconduct or recklessness.
Section 3. Personal liability of officers. An officer of the
corporation shall not be personally liable, as such, to the corporation or its
shareholders for monetary damages (including, without limitation, any judgment,
amount paid in settlement, penalty, punitive damages or expense of any nature
(including, without limitation, attorneys' fees and disbursements)) for any
action taken, or any failure to take any action, unless the officer has breached
or failed to perform the duties of his or her office under these Articles of
Incorporation, the By-laws of the corporation or applicable provisions of law
and the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
Section 4. Interpretation of Article. The provisions of Section
2 and 3 of this Article 9th shall not apply to the responsibility or liability
of a director or officer, as such, pursuant to any criminal statute or for the
payment of taxes pursuant to local, state or federal law. The provisions of this
Article 9th have been adopted pursuant to the authority of sections 204A(10) and
801 of the Pennsylvania Business Corporation Law of 1933, and shall be deemed to
be a contract with each director or officer of the corporation who serves as
such at any time while this Article 9th is in effect, and such provisions are
cumulative of and shall be in addition to and independent of any and all other
limitations on the liabilities of directors or officers of the corporation, as
such, or rights of indemnification by the corporation to which a director or
officer of the corporation may be entitled, whether such limitations or rights
arise under or are created by any statute, rule of law, By-law, agreement, vote
of shareholders or disinterested directors or otherwise. Each person who serves
as a director or officer of the corporation while this Article 9th is in effect
shall be deemed to be doing so in reliance on the provision of this Article 9th.
No amendment to or repeal of this Article 9th nor the adoption of any provision
of these Articles of Incorporation inconsistent with this Article 9th, shall
apply to or have any effect on the liability or alleged liability of any
director or officer of the corporation for or with respect to any acts or
omissions of such director or officer occurring prior to such amendment, repeal
or adoption of an inconsistent provision. In any action, suit or proceeding
involving the application of the provisions of this Article 9th the party or
parties challenging the right of a director or officer to the benefits of this
Article 9th shall have the burden of proof.
COMMONWEALTH OF PENNSYLVANIA
ARTICLES OF AMENDMENT
SAFEGUARD SCIENTIFICS, INC.
In compliance with the requirements of the applicable provisions of 15
Pa. C.S. Section 1915 relating to the Business Corporation Law, Act of December
21, 1988 (P.L. 1444, No. 177), as amended, the undersigned, desiring to amend
its Articles of Incorporation, does hereby certify that:
1. Name. The name of the corporation is:
Safeguard Scientifics, Inc.
2. The address of the corporation's current registered office in
this Commonwealth is:
800 The Safeguard Building
435 Devon Park Drive
Wayne, Pennsylvania 19087
Chester County
3. The statute under which the corporation was incorporated is
the Business Corporation Law, approved the 5th day of May, 1933, P.L. 364, as
amended.
4. The corporation was incorporated on September 11, 1953.
5. The amendment was adopted by a majority vote of the
shareholders pursuant to 15 Pa. C.S. Section 1914 (a) and (b).
6. The amendment, as adopted by the corporation, is set forth in
full on Exhibit A attached hereto.
IN TESTIMONY WHEREOF, the undersigned has signed and sealed these
Articles of Amendment this 27th day of May, 1999.
SAFEGUARD SCIENTIFICS, INC.
By: /s/ WARREN V. MUSSER
-----------------------------------------
Warren V. Musser, Chief Executive Officer
EXHIBIT A
TO
ARTICLES OF AMENDMENT
SAFEGUARD SCIENTIFICS, INC.
RESOLVED, that Article 5th of the Company's Articles of Incorporation be amended
to read in its entirety as follows:
5th. The Corporation shall be authorized to issue 501,000,000 shares of
capital stock, which shall be divided into 500,000,000 shares of Common Stock,
with a par value of ten cents ($.10) per share (the "Common Stock"), and
1,000,000 shares of Preferred Stock, with a par value of ten cents ($.10) per
share (the "Preferred Stock").
The following is a statement of the voting rights, preferences,
limitations and special rights in respect of the authorized capital stock of the
Corporation.
I. PREFERRED STOCK
A. DESCRIPTION OF UNDESIGNATED PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
classes or series. The Board of Directors of the Corporation shall have
authority to the fullest extent permitted under the Pennsylvania Business
Corporation Law to adopt by resolution from time to time one or more Statements
with Respect to Shares providing for the designation of one or more classes or
series of Preferred Stock and the voting rights, preferences, limitations and
special rights, if any, and to fix or alter the number of shares comprising any
such class or series, subject to any requirements of the Pennsylvania Business
Corporation Law and these Articles of Incorporation, as amended from time to
time.
The authority of the Board of Directors with respect to each such class
or series shall include, without limitation of the foregoing, the right to
determine and fix the following preferences and powers, which may vary as
between different classes or series of Preferred Stock:
(1) the distinctive designation of such class or series and the number
of shares to constitute such class or series;
(2) the rate at which dividends on the shares of such class or series
shall be declared and paid, or set aside for payment, whether dividends at the
rate so determined shall be cumulative or accruing, and whether the shares of
such class or series shall be entitled to any participating or other dividends
in addition to dividends at the rate so determined, and if so, on what terms;
(3) the right or obligation, if any, of the Corporation to redeem
shares of the particular class or series of Preferred Stock and, if redeemable,
the price, terms and manner of such redemption;
(4) the special and relative rights and preferences, if any, and the
amount or amounts per share which the shares of such class or series of
Preferred Stock shall be entitled to receive upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(5) the terms and conditions, if any, upon which shares of such class
or series shall be convertible into, or exchangeable for, shares of capital
stock of any other class or series, including the price or prices or the rate or
rates of conversion or exchange and the terms of adjustment, if any;
(6) the obligation, if any, of the Corporation to retire, redeem or
purchase shares of such class or series pursuant to a sinking fund or fund of a
similar nature or otherwise, and the terms and conditions of such obligation;
(7) voting rights, if any, including special voting rights with respect
to the election of directors and matters adversely affecting any class or series
of Preferred Stock;
(8) limitations, if any, on the issuance of additional shares of such
class or series or any shares of any other class or series of Preferred Stock;
and
(9) such other preferences, limitations, and special rights, if any,
thereof as the Board of Directors of the Corporation, by the vote of the members
of the Board of Directors then in office acting in accordance with these
Articles of Incorporation, as amended from time to time, or any Preferred Stock,
may deem advisable and which are not inconsistent with law, the provisions of
these Articles of Incorporation, as amended from time to time, or the provisions
of any such Statement with Respect to Shares.
II. COMMON STOCK
A. PRIORITY. All voting rights, preferences, limitations and special
rights, if any, of the Common Stock are expressly made subject to and
subordinate to those that may be fixed with respect to the Preferred Stock.
B. VOTING RIGHTS. Each holder of record of Common Stock shall be
entitled to one vote for each share of Common Stock standing in his name on the
books of the Corporation. Except as otherwise required by law, these Articles of
Incorporation, and any Statement with Respect to Shares with respect to any
Preferred Stock, the holders of Common Stock and Preferred Stock shall vote
together as a single class on all matters submitted to stockholders for a vote.
C. DIVIDENDS. Subject to provisions of law, these Articles of
Incorporation, and any Statement with Respect to Shares with respect to any
Preferred Stock, the holders of Common Stock shall be entitled to receive
dividends out of funds legally available therefor at such times and in such
amounts as the Board of Directors may determine in their sole discretion.
D. LIQUIDATION. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after the payment or provision
for payment of all debts and liabilities of the Corporation and all preferential
amounts to which the holders of the Preferred Stock are entitled with respect to
the distribution of assets in liquidation, the holders of Common Stock shall be
entitled to share ratably in the remaining assets of the Corporation available
for distribution, subject to any rights of holders of Preferred Stock to
participate with the holders of Common Stock in any such distribution of
remaining assets.
STATEMENT WITH RESPECT TO SHARES-DOMESTIC BUSINESS CORPORATION
DSCB: 15-1522 (REV 90)
In compliance with the requirements of 15 Pa.C.S. Section 1522(b)
(relating to statement with respect to shares), the undersigned corporation,
desiring to state the designation and voting rights, preferences, limitations,
and special rights, if any, of a class or series of its shares, hereby states
that:
1. The name of the corporation is: Safeguard Scientifics, Inc.
2. The resolution amending the Articles under 15 Pa.C.S. ss.
1522(b) is set forth in full in Exhibit A attached hereto and
made a part hereof.
3. The aggregate number of shares of such class or series
established and designated by (a) such resolution, (b) all
prior statements, if any, filed under 15 Pa.C.S. ss. 1522
or corresponding provisions of prior law with respect thereto,
and (c) any other provision of the Articles is 150,000 shares.
4. The resolution was adopted by the Board of Directors or an
authorized committee thereof on 2/28/00.
5. The resolution shall be effective upon the filing of this
statement with respect to shares in the Department of State.
IN TESTIMONY WHEREOF, the undersigned corporation has caused this
statement to be signed by a duly authorized officer thereof this 9th day of
March, 2000.
SAFEGUARD SCIENTIFICS, INC.
By: /s/ WARREN V. MUSSER
-------------------------------------------
Warren V. Musser, Chief Executive Officer
EXHIBIT A
RESOLUTION OF THE BOARD OF DIRECTORS OF
SAFEGUARD SCIENTIFICS, INC.
ESTABLISHING AND DESIGNATING
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
AS A SERIES OF THE PREFERRED STOCK
RESOLVED, that pursuant to the authority expressly vested in the Board
of Directors of Safeguard Scientifics, Inc. (the "Corporation") by Article FIFTH
of the Articles of Incorporation of the Corporation, the Board of Directors
hereby fixes and determines the voting rights, designations, preferences,
qualifications, privileges, limitations, restrictions, options, conversion
rights and other special or relative rights of the first series of the Series
Preferred Stock, par value $10.00 per share, which shall consist of 150,000
shares and shall be designated as Series A Junior Participating Preferred Shares
(the "Series A Preferred Shares").
Special Terms of the Series A Preferred Shares
SECTION 1. Dividends and Distributions.
(a) The rate of dividends payable per share of Series A Preferred
Shares on the first day of January, April, July and October in each year or such
other quarterly payment date as shall be specified by the Board of Directors
(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 the Series A Preferred Shares,
shall be (rounded to the nearest cent) equal to the greater of (i) $10.00 or
(ii) 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 cash, based upon the fair market value at
the time the non-cash dividend or other distribution is declared or paid as
determined in good faith by the Board of Directors) 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, $.10 par value per share, of the
Corporation 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 the Series A Preferred Shares.
Dividends on the Series A Preferred Shares shall be paid out of funds legally
available for such purpose. In the event the Corporation shall at any time after
March 24, 2000 (the "Rights Declaration Date") (i) declare and pay to a holder
of record as of a date after the Rights Declaration Date any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock, or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares, then in each such case the amounts to which holders of
Series A Preferred Shares were entitled immediately prior to such event under
clause (ii) of the preceding sentence shall be adjusted by multiplying each 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) Dividends shall begin to accrue and be cumulative on outstanding
Series A Preferred Shares from the Quarterly Dividend Payment Date next
preceding the date of issue of such Series A Preferred 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 Series A Preferred Shares 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 Series A Preferred Shares 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.
SECTION 2. Voting Rights. In addition to any other voting rights
required by law, the holders of Series A Preferred Shares shall have the
following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
Series A Preferred Share shall entitle the holder thereof to 1,000 votes on all
matters submitted to a vote of the shareholders of the Corporation. 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 shares of Common Stock, or (iii) combine the outstanding shares
of Common Stock into a smaller number of shares, then in each such case the
number of votes per share to which holders of Series A Preferred Shares were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) In the event that dividends upon the Series A Preferred Shares
shall be in arrears to an amount equal to six full quarterly dividends thereon,
the holders of such Series A Preferred Shares shall become entitled to the
extent hereinafter provided to vote noncumulatively at all elections of
directors of the Corporation, and to receive notice of all shareholders'
meetings to be held for such purpose. At such meetings, to the extent that
directors are being elected, the holders of such Series A Preferred Shares
voting as a class shall be entitled solely to elect two members of the Board of
Directors of the Corporation; and all other directors of the Corporation shall
be elected by the other shareholders of the Corporation entitled to vote in the
election of directors. Such voting rights of the holders of such Series A
Preferred Shares shall continue until all accumulated and unpaid dividends
thereon shall have been paid or funds sufficient therefor set aside, whereupon
all such voting rights of the holders of shares of such series shall cease,
subject to being again revived from time to time upon the reoccurrence of the
conditions above described as giving rise thereto.
At any time when such right to elect directors separately as a class
shall have so vested, the Corporation may, and upon the written request of the
holders of record of not less than 20% of the then outstanding total number of
shares of all the Series A Preferred Shares having the right to elect directors
in such circumstances shall, call a special meeting of holders of such Series A
Preferred Shares for the election of directors. In the case of such a written
request, such special meeting shall be held within 90 days after the delivery of
such request, and, in either case, at the place and upon the notice provided by
law and in the By-laws of the Corporation; provided, that the Corporation shall
not be required to call such a special meeting if such request is received less
than 120 days before the date fixed for the next ensuing annual or special
meeting of shareholders of the Corporation. Upon the mailing of the notice of
such special meeting to the holders of such Series A Preferred Shares, or, if no
such meeting be held, then upon the mailing of the notice of the next annual or
special meeting of shareholders for the election of directors, the number of
directors of the Corporation shall, ipso facto, be increased to the extent, but
only to the extent, necessary to provide sufficient vacancies to enable the
holders of such Series A Preferred Shares to elect the two directors hereinabove
provided for, and all such vacancies shall be filled only by vote of the holders
of such Series A Preferred Shares as hereinabove provided. Whenever the number
of directors of the Corporation shall have been increased, the number as so
increased may thereafter be further increased or decreased in such manner as may
be permitted by the By-laws and without the vote of the holders of Series A
Preferred Shares, provided that no such action shall impair the right of the
holders of Series A Preferred Shares to elect and to be represented by two
directors as herein provided.
So long as the holders of Series A Preferred Shares are entitled
hereunder to voting rights, any vacancy in the Board of Directors caused by the
death or resignation of any director elected by the holders of Series A
Preferred Shares, shall, until the next meeting of shareholders for the election
of directors, in each case be filled by the remaining director elected by the
holders of Series A Preferred Shares having the right to elect directors in such
circumstances.
Upon termination of the voting rights of the holders of any series of
Series A Preferred Shares the terms of office of all persons who shall have been
elected directors of the Corporation by vote of the holders of Series A
Preferred Shares or by a director elected by such holders shall forthwith
terminate.
(c) Except as otherwise provided herein, in the Articles of
Incorporation of the Corporation or by law, the holders of Series A Preferred
Shares and the holders of Common Stock (and the holders of shares of any
other series or class entitled to vote thereon) shall vote together as one class
on all matters submitted to a vote of shareholders of the Corporation.
SECTION 3. Reacquired Shares. Any Series A Preferred Shares 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 Series Preferred
Stock and may be reissued as part of a new series of Series Preferred Stock to
be created by resolution or resolutions of the Board of Directors.
SECTION 4. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of Series A Preferred Shares shall be entitled to
receive the greater of (a) $1000.00 per share, plus accrued dividends to the
date of distribution, whether or not earned or declared, or (b) an 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 Stock. 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 shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
then in each such case the amount to which holders of Series A Preferred Shares
were entitled immediately prior to such event pursuant to 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.
SECTION 5. 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 Series A
Preferred Shares 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 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 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
shares of Common Stock, or (iii) combine the outstanding shares of 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 Preferred Shares shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
SECTION 6. No Redemption. The Series A Preferred Shares shall not be
redeemable.
SECTION 7. Ranking. The Series A Preferred Shares shall rank junior to
all other series of the Corporation's Series Preferred Stock as to the payment
of dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
SECTION 8. Fractional Shares. Series A Preferred Shares 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 Preferred Shares.