RESTATED ARTICLES OF INCORPORATION
OF
SHOE CARNIVAL, INC.
(FORMERLY KNOWN AS SCI INDIANA, INC.)
SCI Indiana, Inc., an Indiana corporation (the "Corporation"),
and the survivor of a merger with Shoe Carnival, Inc., a Delaware
corporation, effected pursuant to a Plan and Agreement of Merger dated
April 25, 1996, desiring to amend and restate its Articles of
Incorporation, pursuant to the Indiana Business Corporation Law (the
"IBCL") and to change its name, submits the following Restated Articles of
Incorporation:
ARTICLE I
The name of the Corporation is Shoe Carnival, Inc.
ARTICLE II
The address of its registered office is 8233 Baumgart Road,
Evansville, Indiana 47711, and the name of its registered agent at such
address is Mark L. Lemond.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted are:
(a) To engage in any lawful act or activity for which
corporations may be organized under the IBCL; and
(b) In general, to possess and exercise all the powers and
privileges granted by the IBCL or by any other law of Indiana or by these
Restated Articles of Incorporation, together with any powers incidental
thereto, so far as such powers and privileges are necessary or convenient
to the conduct, promotion or attainment of the business or purposes of the
Corporation.
ARTICLE IV
Section 1. Capital Stock. The total number of shares of all
classes of capital stock which the Corporation shall have authority to
issue is 55,000,000 shares, consisting of 50,000,000 shares of Common
Stock, without par value ("Common Stock"), and 5,000,000 shares of
Preferred Stock, without par value ("Preferred Stock").
Section 2. Common Stock.
(a) Subject to any voting rights that may be conferred upon the
holders of any series of the Preferred Stock established by the Board of
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Directors pursuant to authority herein provided, and except as otherwise
provided by law, the shares of Common Stock shall entitle the holders
thereof to one vote for each share upon all matters upon which shareholders
have the right to vote.
(b) Subject to any limitations prescribed in this Article IV
and any further limitations prescribed in accordance therewith, and subject
to any prior rights that may be conferred upon the holders of any series of
the Preferred Stock established by the Board of Directors pursuant to
authority herein provided, and except as otherwise provided by law, the
holders of shares of Common Stock shall be entitled to receive when and as
declared by the Board of Directors, out of the assets of the Corporation
which are by law available therefor, pro rata dividends payable either in
cash, in property or securities of the Corporation.
(c) Subject to any prior rights that may be conferred upon the
holders of any series of the Preferred Stock established by the Board of
Directors pursuant to authority herein provided, holders of shares of
Common Stock will be entitled to receive pro rata all of the remaining
assets of the Corporation available for distribution to its shareholders in
the event of any liquidation, dissolution or winding up of the Corporation.
Section 3. Preferred Stock.
(a) Except as required by the IBCL or by the provisions of
these Restated Articles of Incorporation adopted by the Board of Directors
pursuant to subsection (b) of this Section 3 describing the terms of the
Preferred Stock or a series thereof, the holders of Preferred Stock shall
have no voting rights or powers. Shares of Preferred Stock shall, when
validly issued by the Corporation, entitle the record holder thereof to
vote as and on such matters, but only as and on such matters, as the
holders thereof are entitled to vote under the IBCL or under the provisions
of these Restated Articles of Incorporation adopted by the Board of
Directors pursuant to subsection (b) of this Section 3 describing the terms
of the Preferred Stock or a series thereof (which provisions may provide
for special, conditional, limited, or unlimited voting rights, including
multiple or fractional votes per share, or for no right to vote, except to
the extent required by the IBCL) and subject to such shareholder disclosure
and recognition procedures (which may include voting prohibition sanctions)
as the Corporation may by action of the Board of Directors establish.
(b) Preferred Stock may be issued from time to time in one or
more series, each such series to have such distinctive designation and such
preferences, limitations, and relative voting and other rights as shall be
set forth in these Restated Articles of Incorporation. Subject to the
requirements of the IBCL and subject to all other provisions of these
Restated Articles of Incorporation, the Board of Directors of the
Corporation may create one or more series of Preferred Stock and may
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determine the preferences, limitations, and relative voting and other
rights of one or more series of Preferred Stock before the issuance of any
shares of that series by the adoption of an amendment to these Restated
Articles of Incorporation that specifies the terms of the series of
Preferred Stock. All shares of a series of Preferred Stock must have
preferences, limitations, and relative voting and other rights identical
with those of other shares of the same series and, if the description of
the series set forth in these Restated Articles of Incorporation so
provides, no series of Preferred Stock need have preferences, limitations,
or relative voting or other rights identical with those of any other series
of Preferred Stock.
Before issuing any shares of a series of Preferred Stock, the
Board of Directors shall adopt an amendment to these Restated Articles of
Incorporation, which shall be effective without any shareholder approval or
other action, that sets forth the preferences, limitations, and relative
voting and other rights of the series, and authority is hereby expressly
vested in the Board of Directors, by such amendment:
(1) To fix the distinctive designation of such series and the
number of shares which shall constitute such series, which number may
be increased or decreased (but not below the number of shares thereof
then outstanding) from time to time by action of the Board of
Directors;
(2) To fix the voting rights of such series, which may consist
of special, conditional, limited, or unlimited voting rights,
including multiple or fractional votes per share, or no right to vote
(except to the extent required by the IBCL);
(3) To fix the dividend or distribution rights of such series
and the manner of calculating the amount and time for payment of
dividends or distributions, including, but not limited to:
(A) the dividend rate, if any, of such series;
(B) any limitations, restrictions, or conditions on the
payment of dividends or other distributions, including whether
dividends or other distributions shall be noncumulative or
cumulative or partially cumulative and, if so, from which date or
dates;
(C) the relative rights of priority, if any, of payment of
dividends or other distributions on shares of that series in
relation to Common Stock and shares of any other series of
Preferred Stock; and
(D) the form of dividends or other distributions, which may
be payable at the option of the Corporation, the shareholder, or
another person (and in such case to prescribe the terms and
conditions of exercising such option), or upon the occurrence of
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a designated event in cash, indebtedness, stock or other
securities or other property, or in any combination thereof,
and to make provisions, in the case of dividends or other
distributions payable in stock or other securities, for
adjustment of the dividend or distribution rate in such events as
the Board of Directors shall determine;
(4) To fix the price or prices at which, and the terms and
conditions on which, the shares of such series may be redeemed or
converted, which may be
(A) at the option of the Corporation, the shareholder, or
another person or upon the occurrence of a designated event;
(B) for cash, indebtedness, securities, or other property
or any combination thereof; and
(C) in a designated amount or in an amount determined in
accordance with a designated formula or by reference to extrinsic
data or events;
(5) To fix the amount or amounts payable upon the shares of
such series in the event of any liquidation, dissolution, or winding
up of the Corporation and the relative rights of priority, if any, of
payment upon shares of such series in relation to Common Stock and
shares of any other series of special shares; and to determine whether
or not any such preferential rights upon dissolution need be
considered in determining whether or not the Corporation may make
dividends, repurchases, or other distributions;
(6) To determine whether or not the shares of such series shall
be entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of such series and, if so entitled, the amount
of such fund and the manner of its application;
(7) To determine whether or not the issue of any additional
shares of such series or of any other series in addition to such
series shall be subject to restrictions in addition to restrictions,
if any, on the issue of additional shares imposed in the provisions of
these Restated Articles of Incorporation fixing the terms of any
outstanding series of Preferred Stock theretofore issued pursuant to
this Section 3 and, if subject to additional restrictions, the extent
of such additional restrictions; and
(8) Generally to fix the other preferences or rights, and any
qualifications, limitations, or restrictions of such preferences or
rights, of such series to the full extent permitted by the IBCL;
provided, however, that no such preferences, rights, qualifications,
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limitations, or restrictions shall be in conflict with these Restated
Articles of Incorporation or any amendment hereof.
(c) Preferred Stock of any series that has been redeemed (whether
through the operation of a sinking fund or otherwise) or purchased by the
Corporation, or which, if convertible, has been converted into shares of
the Corporation of any other class or series, may be reissued as a part of
such series or of any other series of Preferred Stock, subject to such
limitations (if any) as may be fixed by the Board of Directors with respect
to such series of Preferred Stock in accordance with subsection (b) of this
Section 3.
ARTICLE V
Section 1. Classification of Board of Directors. The Board of
Directors shall be divided into three classes, as nearly equal in number as
the then total number of directors constituting the entire Board permits
with the term of office of one class expiring each year. The term of the
first class of directors shall expire at the annual meeting of shareholders
in 1997, and the term of the second and third classes of directors shall
expire at the annual meetings of shareholders in 1998 and 1999,
respectively. Upon expiration of the terms set forth herein, each class of
directors shall be elected for a three year term expiring at the third
succeeding annual meeting of shareholders. As of the date of adoption of
these Restated Articles of Incorporation, the directors of the Corporation
and their classes are as follows: David H. Russell - first class; William
E. Bindley and Mark L. Lemond - second class; and J. Wayne Weaver and
Gerald W. Schoor - third class. Any vacancies in the Board of Directors
for any reason, and any directorships resulting from any increase in the
number of directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum, and
any directors so chosen shall hold office until the next election of the
class for which such directors shall have been chosen and until their
successors shall be elected and qualified. Notwithstanding the foregoing,
and except as otherwise required by law, whenever the holders of any one or
more series of Preferred Stock shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of shareholders. Subject to the foregoing, at
each annual meeting of shareholders the successors to the class of
directors whose term shall then expire shall be elected to hold office for
a term expiring at the third succeeding annual meeting.
Section 2. Removal of Directors. Notwithstanding any other
provisions of the IBCL, these Restated Articles of Incorporation or the By-
Laws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Restated Articles of
Incorporation or the By-Laws of the Corporation), one or more directors of
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the Corporation may be removed at any time, with or without cause, by the
affirmative vote of the holders of a majority or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the shareholders called for that purpose, or by a majority
vote of the entire Board of Directors. Notwithstanding the foregoing, and
except as otherwise required by law, whenever the holders of any one or
more series of Preferred Stock shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the provisions of
this Section shall not apply with respect to the director or directors
elected by such holders of Preferred Stock.
ARTICLE VI
The Corporation shall, to the fullest extent permitted by Indiana
law, as amended from time to time, indemnify, and advance expenses to, each
of its now acting and former directors, officers, employees and agents,
whenever any such currently acting or former director, officer, employee or
agent is made a party or threatened to be made a party in any action, suit
or proceeding by reason of his service as such with the Corporation.
ARTICLE VII
Section 1. Supermajority Vote for Business Combinations. Except
as provided in Sections 2 and 3 hereof, neither the Corporation nor its
Subsidiaries, if any, shall become a party to any Business Combination with
a Related Person without the prior affirmative vote at a meeting of the
Corporation's shareholders:
(a) Of at least 80% of the outstanding shares of all classes of
Voting Stock of the Corporation considered for purposes of this
Article VII as a single class, and
(b) Of an Independent Majority of Shareholders.
Such favorable votes shall be in addition to any shareholder vote
which would be required without reference to this Section 1 and shall be
required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified by law or elsewhere in these
Restated Articles of Incorporation or the By-Laws of the Corporation or
otherwise.
Section 2. Fair Price Exception. The provisions of Section 1 of
this Article VII shall not apply to a Business Combination if all of the
conditions set forth in subsections (a) through (d) are satisfied.
(a) The fair market value of the property, securities, or other
consideration to be received per share by holders of each class or series
of capital stock of the Corporation in the Business Combination is not
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less, as of the date of the consummation of the Business Combination (the
"Consummation Date"), than the higher of the following: (1) the highest
per share price (with appropriate adjustments for recapitalizations and for
stock splits, stock dividends, and like distributions), including brokerage
commissions and solicitation fees paid by the Related Person in acquiring
any of its holdings of such class or series of capital stock within the
two-year period immediately prior to the first public announcement of the
proposed Business Combination ("Announcement Date") plus interest
compounded annually from the date that the Related Person became a Related
Person (the "Determination Date"), or if later from a date two years before
the Consummation Date, through the Consummation Date, at the rate publicly
announced as the "prime rate" of interest of Citibank, N.A. (or of such
other major bank headquartered in New York as may be selected by a majority
of the Continuing Directors) from time to time in effect, less the
aggregate amount of any cash dividends paid and the fair market value of
any dividends paid in other than cash on each share of such stock from the
date from which interest accrues under the preceding clause through the
Consummation Date up to but not exceeding the amount of interest so payable
per share; OR (2) the fair market value per share of such class or series
on the Announcement Date as determined by the highest closing sale price
during the 30-day period immediately preceding the Announcement Date if
such stock is listed on a securities exchange registered under the
Securities Exchange Act of 1934 or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to such stock
during the 30-day period preceding the Announcement Date on the National
Association of Securities Dealers, Inc. Automated Quotation System or any
similar system then in use, or if no such quotations are available, the
fair market value of such stock immediately prior to the first public
announcement of the proposed Business Combination as determined by the
Continuing Directors in good faith. In the event of a Business Combination
upon the consummation of which the Corporation would be the surviving
corporation or company or would continue to exist (unless it is provided,
contemplated, or intended that as part of such Business Combination or
within one year after consummation thereof a plan of liquidation or
dissolution of the Corporation will be effected), the term "other
consideration to be received" shall include (without limitation) Common
Stock and/or the shares of any other class of stock retained by
shareholders of the Corporation other than Related Persons who are parties
to such Business Combination;
(b) The consideration to be received in such Business
Combination by holders of each class or series of capital stock of the
Corporation other than the Related Person involved shall, except to the
extent that a shareholder agrees otherwise as to all or part of the shares
which he or she owns, be in the same form and of the same kind as the
consideration paid by the Related Person in acquiring the majority of the
shares of capital stock of such class or series already Beneficially Owned
by it;
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(c) After such Related Person became a Related Person and prior
to the consummation of such Business Combination: (1) such Related Person
shall have taken steps to ensure that the Board of Directors of the
Corporation included at all times representation by Continuing Directors
proportionate to the ratio that the number of shares of Voting Stock of the
Corporation from time to time owned by shareholders who are not Related
Persons bears to all shares of Voting Stock of the Corporation outstanding
at the time in question (with a Continuing Director to occupy any resulting
fractional position among the Directors); (2) such Related Person shall not
have acquired from the Corporation, directly or indirectly, any shares of
capital stock of the Corporation (except upon conversion of convertible
securities acquired by it prior to becoming a Related Person or as a result
of a pro rata stock dividend, stock split, or division of shares or in a
transaction which satisfied all applicable requirements of this Article
VII); (3) such Related Person shall not have acquired any additional shares
of Voting Stock of the Corporation or securities convertible into or
exchangeable for shares of Voting Stock except as a part of the transaction
which resulted in such Related Person's becoming a Related Person; and (4)
such Related Person shall not have received the benefit, directly or
indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges, or other financial assistance or tax credits
provided by the Corporation or any Subsidiary, or made any major change in
the Corporation's business or equity capital structure or entered into any
contract, arrangement, or understanding with the Corporation except any
such change, contract, arrangement, or understanding as may have been
approved by the favorable vote of not less than a majority of the
Continuing Directors of the Corporation; and
(d) A proxy or information statement complying with the
requirements of the Securities Exchange Act of 1934 and the rules and
regulations of the Securities and Exchange Commission thereunder, as then
in force for corporations subject to the requirements of Section 14 of such
Act (even if the Corporation is not otherwise subject to Section 14 of such
Act), shall have been mailed to all holders of shares of the Corporation's
capital stock entitled to vote with respect to such Business Combination.
Such proxy or information statement shall contain on the face page thereof,
in a prominent place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing Directors,
or any of them, may have furnished in writing and, if deemed advisable by a
majority of the Continuing Directors, a fair summary of an opinion of a
reputable investment banking firm addressed to the Corporation as to the
fairness (or lack of fairness) of the terms of such Business Combination
from the point of view of the holders of shares of Voting Stock other than
any Related Person (such investment banking firm to be selected by a
majority of the Continuing Directors, to be furnished with all information
it reasonably requests, and to be paid a reasonable fee for its services
upon receipt by the Corporation of such opinion).
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Section 3. Director Approval Exception. The provisions of
Section 1 of this Article VII shall not apply to a Business Combination if:
(a) The Continuing Directors of the Corporation, by an
affirmative vote of not less than a majority of all Continuing Directors,
(1) have expressly approved a memorandum of understanding with the Related
Person with respect to the Business Combination prior to the time that the
Related Person became a Related Person and the Business Combination is
effected on substantially the same terms and conditions as are provided by
the memorandum of understanding, or (2) have otherwise approved the
Business Combination (this provision is incapable of satisfaction unless
there is at least one Continuing Director); or
(b) The Business Combination is solely between the Corporation
and another corporation, one hundred percent (100%) of the Voting Stock of
which is owned directly or indirectly by the Corporation.
Section 4. Definitions. For purposes of this Article VII:
(a) A "Business Combination" means:
(1) The sale, exchange, lease, transfer, or other disposition
to or with a Related Person or any Affiliate or Associate of such
Related Person by the Corporation or any Subsidiaries (in a single
transaction or a Series of Related Transactions) of all or
substantially all, or any Substantial Part, of its or their assets or
businesses (including, without limitation, securities issued by a
Subsidiary, if any);
(2) The purchase, exchange, lease, or other acquisition by the
Corporation or any Subsidiaries (in a single transaction or a Series
of Related Transactions) of all or substantially all, or any
Substantial Part, of the assets or business of a Related Person or any
Affiliate or Associate of such Related Person;
(3) Any merger or consolidation of the Corporation or any
Subsidiary thereof into or with a Related Person or any Affiliate or
Associate of such Related Person or into or with another Person which,
after such merger or consolidation, would be an Affiliate or an
Associate of a Related Person, in each case irrespective of which
Person is the surviving entity in such merger or consolidation;
(4) Any reclassification of securities, recapitalization, or
other transaction (other than a redemption in accordance with the
terms of the security redeemed) which has the effect, directly or
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indirectly, of increasing the proportionate amount of shares of Voting
Stock of the Corporation or any Subsidiary thereof which are
Beneficially Owned by a Related Person, or any partial or complete
liquidation, spinoff, splitoff, or splitup of the Corporation or any
Subsidiary thereof; provided, however, that this Section 4(a)(4) shall
not relate to any transaction that has been approved by a majority of
the Continuing Directors; or
(5) The acquisition upon the issuance thereof of Beneficial
Ownership by a Related Person of shares of Voting Stock or securities
convertible into shares of Voting Stock or any voting securities or
securities convertible into voting securities of any Subsidiary of the
Corporation, or the acquisition upon the issuance thereof of
Beneficial Ownership by a Related Person of any rights, warrants, or
options to acquire any of the foregoing or any combination of the
foregoing shares of Voting Stock or voting securities of a Subsidiary,
if any.
(b) A "Series of Related Transactions" shall be deemed to
include not only a series of transactions with the same Related Person, but
also a series of separate transactions with a Related Person or any
Affiliate or Associate of such Related Person.
(c) A "Person" shall mean any individual, firm, corporation, or
other entity and any partnership, syndicate, or other group.
(d) "Related Person" shall mean any Person (other than the
Corporation or any Subsidiary of the Corporation or the Continuing
Directors, singly or as a group) who or that at any time described in the
last sentence of the penultimate paragraph of this subsection (d):
(1) is the Beneficial Owner, directly or indirectly, of more
than ten percent (10%) of the voting power of the outstanding shares
of Voting Stock and who has not been the Beneficial Owner, directly or
indirectly, of more than ten percent (10%) of the voting power of the
outstanding shares of Voting Stock for a continuous period of two
years prior to the date in question; or
(2) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question (but not
continuously during such two-year period) was the Beneficial Owner,
directly or indirectly, of ten percent (10%) or more of the voting
power of the then outstanding shares of Voting Stock; or
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(3) is an assignee of or has otherwise succeeded to any shares
of the Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Related Person, if such assignment or succession shall have occurred
in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933, as
amended.
A Related Person shall be deemed to have acquired a share of
stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. For the purposes of determining whether a Person
is the Beneficial Owner of ten percent (10%) or more of the voting power of
the then outstanding Voting Stock, the outstanding Voting Stock shall be
deemed to include any Voting Stock that may be issuable to such Person
pursuant to a right to acquire such Voting Stock and that is therefore
deemed to be Beneficially Owned by such Person pursuant to Section
4(e)(2)(A). A Person who is a Related Person at (1) the time any
definitive agreement relating to a Business Combination is entered into,
(2) the record date for the determination of shareholders entitled to
notice of and to vote on a Business Combination, or (3) the time
immediately prior to the consummation of a Business Combination shall be
deemed a Related Person.
A Related Person shall not include the Board of Directors of the
Corporation acting as a group. In addition, a Related Person shall not
include any Person who is the Beneficial Owner of more than ten percent
(10%) of the outstanding shares of Voting Stock of the predecessor of the
Corporation, Shoe Carnival, Inc., a Delaware corporation, formerly known as
DAR Group Investments, Inc., on January 15, 1993.
(e) A Person shall be a "Beneficial Owner" of any shares of
Voting Stock:
(1) which such Person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such Person or any of its Affiliates or Associates
has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement, or understanding or upon the exercise of
conversion rights, exchange rights, warrants, or options, or
otherwise, or (B) the right to vote pursuant to any agreement,
arrangement, or understanding; or
(3) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of its Affiliates or
Associates has any agreement, arrangement, or understanding for the
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purpose of acquiring, holding, voting, or disposing of any shares of
Voting Stock.
(f) An "Affiliate" of, or a person Affiliated with, a specific
Person means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
(g) The term "Associate" used to indicate a relationship with
any Person, means (1) any corporation or organization (other than this
Corporation or a majority-owned Subsidiary of this Corporation) of which
such Person is an officer or partner or is, directly or indirectly, the
Beneficial Owner of five percent (5%) or more of any class of equity
securities, (2) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity, (3) any relative or spouse of
such Person, or any relative of such spouse, who has the same home as such
Person, or (4) any investment company registered under the Investment
Company Act of 1940, as amended, for which such Person or any Affiliate of
such Person serves as investment adviser.
(h) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Related Person set forth in Section 4(d) hereof, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(i) "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board") who is not associated with the
Related Person and was a member of the Board prior to the time that the
Related Person became a Related Person, and any successor of a Continuing
Director who is not associated with the Related Person and is recommended
to succeed a Continuing Director by not less than two-thirds of the
Continuing Directors then on the Board.
(j) "Independent Majority of Shareholders" shall mean the
holders of the outstanding shares of Voting Stock representing a majority
of all the votes entitled to be cast by all shares of Voting Stock other
than shares Beneficially Owned or controlled, directly or indirectly, by a
Related Person.
(k) "Voting Stock" shall mean all outstanding shares of capital
stock of the Corporation or another corporation entitled to vote generally
on the election of Directors, and each reference to a proportion of shares
of Voting Stock shall refer to such proportion of the votes entitled to be
cast by such shares.
(l) "Substantial Part" means properties and assets involved in
any single transaction or a Series of Related Transactions having an
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aggregate fair market value of more than ten percent (10%) of the total
consolidated assets of the Person in question as determined immediately
prior to such transaction or Series of Related Transactions.
Section 5. Director Determinations. A majority of the
Continuing Directors shall have the power to determine for the purposes of
this Article VII, on the basis of information known to them: (a) the
number of shares of Voting Stock of which any Person is the Beneficial
Owner, (b) whether a Person is an Affiliate or Associate of another, (c)
whether a Person has an agreement, arrangement, or understanding with
another as to the matters referred to in the definition of "Beneficial
Owner," (d) whether the assets subject to any Business Combination
constitute a Substantial Part, (e) whether two or more transactions
constitute a Series of Related Transactions, and (f) such other matters
with respect to which a determination is required under this Article VII.
Section 6. Fiduciary Obligations Unaffected. Nothing in this
Article VII shall be construed to relieve any Related Person from any
fiduciary duty imposed by law.
Section 7. Article VII Nonexclusive. The provisions of this
Article VII are nonexclusive and are in addition to any other provisions of
law or these Restated Articles of Incorporation or the By-Laws of the
Corporation relating to Business Combinations, Related Persons, or similar
matters.
ARTICLE VIII
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Restated Articles of Incorporation
in the manner now or hereafter prescribed by statute. Notwithstanding any
other provision of these Restated Articles of Incorporation or the By-Laws
of the Corporation (and in addition to any other vote that may be required
by law, these Restated Articles of Incorporation or the By-Laws), the
affirmative vote of the holders of at least 80% of the outstanding shares
of the capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) shall be
required to amend, alter or repeal any provision of Articles VI, VII, or
VIII of these Restated Articles of Incorporation.
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