Exhibit 3.17
GARETH STEVENS, INC.
ARTICLES OF AMENDMENT TO AND RESTATEMENT OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
The undersigned officers of Gareth Stevens, Inc. hereby
execute these Articles of Amendment (the "Amendment") and certify
that:
1. The name of the corporation is GARETH STEVENS, INC., a
Wisconsin corporation, with its registered office in Milwaukee County,
Wisconsin.
2. The Amended and Restated Articles of Incorporation are
amended and restated in their entirety as follows, which shall supersede and
take the place of the existing articles of incorporation and any amendments
thereof:
ARTICLE I
NAME
The name of the corporation shall be GARETH STEVENS, INC.
ARTICLE II
PERIOD OF EXISTENCE
The period of existence will be perpetual.
ARTICLE III
PURPOSE
The purpose shall be to engage in any lawful activity
within the purposes for which a corporation may be organized under
Chapter 180 of the Wisconsin Statutes.
ARTICLE IV
SHARES
4.1. NUMBER OF SHARES AND CLASSES. The aggregate number of
shares which the Corporation shall have authority to issue is 12,000,000 shares
divided into the following classes:
10,000,000 of the par value $.001 per share designated
as "Common Stock" and
2,000,000 of the par value $.10 per share designated as
"Cumulative Preferred Stock."
Any and all such shares of Common Stock and Cumulative
Preferred Stock may be issued for such consideration, not less than the par
value thereof, as shall be fixed from time to time by the Board of Directors.
Any and all such shares so issued, the full consideration for which has been
paid or delivered, shall be deemed fully paid stock and shall not be liable to
any further call or assessment and the holders of such shares shall not be
liable for any further payment except as otherwise provided by applicable
Wisconsin statutes. The preferences, limitations and relative rights of such
classes shall be as set forth herein.
4.2. DIRECTORS' AUTHORITY TO ESTABLISH SERIES OF CUMULATIVE
PREFERRED STOCK; ESTABLISHMENT OF SERIES A CUMULATIVE PREFERRED STOCK.
4.2.1. The Board of Directors is authorized to
divide the Cumulative Preferred Stock into series and fix and determine
the relative rights and preferences of each series. Each series shall
be so designated by the Board of Directors as to distinguish the shares
thereof from the shares of all other series. All shares of Cumulative
Preferred Stock shall be identical except as to the following relative
rights and preferences, as to which the Board of Directors may
establish variations between different series not inconsistent with the
provisions of these Articles:
(a) The rate of dividend;
(b) The price and the terms and conditions
on which shares may be redeemed;
(c) The amount payable upon shares in event
of voluntary or involuntary liquidation;
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(d) Sinking fund provisions for the
redemption or purchase of shares;
(e) The terms and conditions on which shares
may be converted into Common Stock, if the shares of any
series are issued with the privilege of conversion; and
(f) The voting rights.
4.2.2. The 400,000 shares of Cumulative Preferred
Stock issued and outstanding as of the date hereof are hereby
designated as Series A Cumulative Preferred Stock, which series shall
have the following relative rights and preferences:
(a) The dividend rate shall be three cents
($.03) per annum per share.
(b) (i) The Corporation has the option to
redeem such shares at any time after five (5) years
from the date of the filing of these Amended and
Restated Articles of Incorporation with the Secretary
of State of Wisconsin (the "Filing Date") and prior
to six (6) years from the Filing Date at a price per
share equal to the greater of (A) a percentage of the
appraised "going concern" value of the Corporation
equal to the percentage of all outstanding Common
Stock that would be represented by a share of such
Series A cumulative Preferred Stock being redeemed by
the Corporation as if it were converted to Common
Stock immediately prior to the redemption (the
"appraised value") or (B) the amount payable upon
liquidation with respect to such share as described
in subsection 4.2.2(c), below.
(ii) Any holder of shares of Series
A Cumulative Preferred Stock has the option to
require the Corporation to redeem such shares at any
time after five (5) years from the Filing Date and
prior to six (6) years from the Filing Date at a
price per share equal to the appraised value.
(iii) In the event any proposed
redemption would violate any applicable federal or
state law or any agreement to which the Company is a
party (A) such proposed redemption shall not be made
unless and until such redemption would no longer
violate applicable law or such agreement
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and (B) the twelve (12) month periods for redemptions
provided in clauses (i) and (ii), above, shall be
tolled until such proposed redemption can be made
pursuant to part (A), above.
(iv) The appraised value shall be
determined by an independent qualified appraiser
selected by the Corporation and agreed upon by the
shareholder(s) whose stock is being redeemed or, if
not agreed, then the average value of two separate
appraisals, one performed by an independent qualified
appraiser selected by the Corporation, and one
performed by an independent qualified appraiser
selected by such shareholder(s). The shareholder(s)
shall bear the cost of any second appraiser selected
pursuant hereto. Neither the determination of the
appraised value of the Corporation nor the
determination of the redemption price for the Series
A Cumulative Preferred Stock shall take into account
that the shares are a minority interest and may lack
marketability.
(v) No less than forty-five (45)
days before the date fixed for redemption (the
"Redemption Date") written notice (the "Redemption
Notice") shall be mailed, postage prepaid, to each
holder of record of the Series A Cumulative Preferred
Stock which is to be redeemed, at its address shown
on the records of the Corporation, if redemption is
being elected by the Corporation; and to the
Corporation at its registered office, if redemption
is being elected by such shareholders. The Redemption
Notice shall contain the following information:
(A) The number of shares of
Series A Cumulative Preferred Stock held by
such holder which shall be redeemed by the
Corporation, and the total number of shares
of Series A Cumulative Preferred Stock held
by all holders to be so redeemed; and
(B) The Redemption Date.
(vi) Within ten (10) days after
delivery of the Redemption Notice, the Corporation
shall notify the shareholder(s) of the selected
appraiser and the shareholder(s) shall respond
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within five (5) days thereafter whether it approves
the use of such appraiser or will select its own
appraiser. Written appraisal reports will be
delivered to all parties at least forty-eight
(48) hours prior to the Redemption Date.
(vii) On or before the Redemption
Date, each holder of shares of Series A Cumulative
Preferred Stock to be redeemed shall surrender the
certificate or certificates representing such shares
to the Corporation at the registered office of the
Corporation on the Redemption Date, and the
applicable Redemption Price for such shares shall be
paid to the order of the person whose name appears on
such certificate or certificates and each surrendered
certificate shall be cancelled and retired.
(viii) From and after the Redemption
Date, no shares of Series A Cumulative Preferred
Stock thereupon subject to redemption shall be
entitled to any further accrual of any dividends or
to the conversion privileges set forth herein.
(c) In the event of a voluntary or
involuntary liquidation of the Corporation, the holders of
shares of Series A Cumulative Preferred Stock shall be
entitled to receive out of the assets of the Corporation
available for distribution to the shareholders an amount equal
to One Dollar ($1.00) per share, plus all accrued and unpaid
dividends thereon.
(d) Subject to adjustment as hereafter
provided, the holders of shares of Series A Cumulative
Preferred Stock may convert each share into 1.7857625 shares
of Common Stock at any time.
(i) In the event the Corporation
shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in
shares of stock or other securities of the
Corporation or in assets (excluding cash dividends or
distributions), then and in each such event provision
shall be made so that the holders of Series A
Cumulative Preferred Stock shall receive upon
conversion thereof in addition to the number of
shares of Common Stock receivable thereupon, the
number of shares of stock or other securities or such
other assets of the Corporation
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which such holders would have received had their
Series A Cumulative Preferred Stock been converted
into Common Stock on the date of such event and had
such holders thereafter, during the period from the
date of such event to and including the Conversion
Date (as that term is hereafter defined in subsection
4.2.2(d)(iv)), retained such shares of stock or other
securities or such other assets receivable by such
holders as aforesaid during such period, giving
application to all adjustments called for during such
period under this subsection 4.2.2(d) with respect to
the rights of the holders of the Series A Cumulative
Preferred Stock.
(ii) If the Common Stock outstanding
prior to the conversion of the Series A Cumulative
Preferred Stock shall be subdivided into a greater
number of shares of Common Stock or combined into a
smaller number of shares of Common Stock, then and in
each such event the holders of the Series A
Cumulative Preferred Stock shall have the right
thereafter to convert such shares into the number of
shares of Common Stock which would be held following
such subdivision or combination by a holder of the
number of shares of Common Stock into which such
shares of Series A Cumulative Preferred Stock might
have been converted immediately prior to such
subdivision or combination, all subject to further
adjustment as provided herein.
(iii) If the Common Stock issuable
upon the conversion of the Series A Cumulative
Preferred Stock shall be changed into the same or
different number of shares of any class or classes of
stock of the Corporation, whether by reclassification
or otherwise (other than a subdivision or combination
of shares, stock dividend, reorganization, merger,
consolidation or sale of assets provided for
elsewhere in this subsection 4.2.2(d)), then and in
such event the holders of the Series A Cumulative
Preferred Stock shall have the right thereafter to
convert such shares into the kind and amount of
shares of stock and other securities and property
receivable upon such reclassification or other change
by holders of the number of shares of Common Stock
into which such shares of Series A Cumulative
Preferred Stock might have been converted immediately
prior to
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such reclassification or change, all subject to
further adjustment as provided herein.
(iv) If at any time or from time to
time there shall be a capital reorganization
involving the Common Stock (other than a subdivision,
combination, reclassification or exchange of shares
provided for elsewhere in this subsection 4.2.2(d))
or a merger or consolidation of the Corporation with
or into another corporation, or the sale of all or
substantially all of the Corporation's properties and
assets to any other person, provision shall be made
so that the holders of the Series A Cumulative
Preferred Stock shall thereafter be entitled to
receive upon conversion of the Series A Cumulative
Preferred Stock, the number of shares of stock or
other securities or property of the Corporation, or
of the successor corporation resulting from such
merger, consolidation or sale, to which the holders
of Common Stock issuable upon conversion would have
been entitled on such capital reorganization, merger,
consolidation, or sale.
(v) To exercise its conversion
privilege, a holder of Series A Cumulative Preferred
Stock shall surrender the certificate or certificates
representing the shares being converted to the
Corporation at its principal office, and shall give
written notice to the Corporation at such office that
such holder elects to convert such shares. Such
notice shall also state the name or names (with
address or addresses) in which the certificate or
certificates for shares of Common Stock issuable upon
such conversion shall be issued. The certificate or
certificates for shares of Series A Cumulative
Preferred Stock surrendered for conversion shall be
accompanied by proper assignment thereof to the
Corporation or in blank. The date when such written
notice is received by the Corporation, together with
the certificate or certificates representing the
shares of Series A Cumulative Preferred Stock being
converted, shall be the "Conversion Date." As
promptly as practicable after the Conversion Date,
the Corporation shall issue and shall deliver to the
holder of the shares of Series A Cumulative Preferred
Stock being converted, or on its written order, such
certificate or certificates as it may
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request for the number of shares of Common Stock
issuable upon the conversion of such shares of
Series A Cumulative Preferred Stock in accordance
with the provisions of this subsection 4.2.2(d) and,
except as hereafter provided, cash in the amount of
all accrued and unpaid dividends on such shares of
Series A Cumulative Preferred Stock, whether or not
earned or declared, up to and including the
Conversion Date. Notwithstanding the above, in the
event any applicable federal or state law or any
agreement to which the Corporation is a party,
prohibits the payment of accrued and unpaid dividends
at the time of conversion, payment of such dividends
shall be deferred until payment is allowed in
accordance with such law or agreement.
(vi) In the event some but not all
of the shares of Series A Cumulative Preferred Stock
represented by a certificate or certificates
surrendered by a holder are converted, the
Corporation shall execute and deliver to or on the
order of the holder, at the expense of the
Corporation, a new certificate representing the
number of shares of Series A Cumulative Preferred
Stock which were not converted.
(vii) The Corporation shall at all
times reserve out of its authorized but unissued
shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of the
Series A Cumulative Preferred Stock, such number of
its shares of Common Stock as shall from time to time
be sufficient to the effect the conversion of all
outstanding shares of the Series A Cumulative
Preferred Stock, and if at any time the number of
authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all
then outstanding shares of the Series A Cumulative
Preferred Stock, the Corporation shall amend these
Amended and Restated Articles of Incorporation to
increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient
for such purpose.
(e) The holders of shares of Series A
Cumulative Preferred Stock shall be entitled to such number of
votes that are equal to the largest number of
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whole shares of Common Stock into which such holder's shares
could be converted.
4.3 DIVIDENDS AND DISTRIBUTIONS.
4.3.1. The Cumulative Preferred Stock shall entitle
the holder thereof to receive when and as declared at any time by the
Board of Directors annual dividends on or before the last day of June
of each year. Such dividends shall be payable out of net profits of the
Corporation or out of any surplus applicable to the payment of such
dividends. The dividends on the Cumulative Preferred Stock shall be
cumulative so that if at any time the full amount of dividends accrued
and in arrears on the Cumulative Preferred Stock shall not be paid, the
deficiency shall be payable without interest before any dividends
(other than dividends paid in Common Stock) or other distributions
shall be made or set apart on the Common Stock. Dividends on Cumulative
Preferred Stock shall accrue on each share from the date on which such
share is issued. Whenever all dividends accrued and in arrears on the
Cumulative Preferred Stock shall have been declared and shall have been
paid or set apart, the Board of Directors may declare dividends on
Common Stock out of the remaining net profits of the Corporation or out
of surplus applicable to the payment of such dividends. Any dividend
paid upon the Cumulative Preferred Stock at the time when any accrued
dividends for any prior period are delinquent shall be expressly
declared and designated as a dividend in whole or partial payment of
the accrued dividend for the earliest period for which dividends are
then delinquent, and each shareholder to whom such payment is made
shall be so advised.
4.3.2. The rate of the dividends to be paid to
holders of Cumulative Preferred Stock of all series shall be as
follows: With respect to Series A Cumulative Preferred Stock at the
rate provided for in subsection 4.2.2(a), above; or with respect to
series not yet established at a rate to be stated in the resolution or
resolutions of the Board of Directors providing for the issuance
thereof.
4.3.3. All dividends on Cumulative Preferred Stock
shall be without priority as between series, and shall be paid or set
apart before any dividends or other distributions shall be paid or set
apart for Common Stock; PROVIDED, HOWEVER, that dividends may be
declared and paid in Common Stock prior to dividends on the Cumulative
Preferred Stock being paid or set apart. Any dividends paid upon the
Cumulative Preferred Stock in any amount less than full cumulative
dividends accrued and in arrears upon all
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Cumulative Preferred Stock outstanding shall, if more than one series
be outstanding, be distributed among the different series in proportion
to the aggregate amounts which would be distributable to the Cumulative
Preferred Stock of each series if full cumulative dividends were
declared and paid thereon.
4.3.4. In the event the proposed payment of any
dividend, whether on Cumulative Preferred Stock or Common Stock, would
violate any applicable federal or state law, such proposed dividend
payment shall not be made unless and until such payment would no longer
violate applicable law.
4.4. LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding-up of the Corporation, whether voluntary or involuntary,
the holders of all series of Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation in full the fixed voluntary
liquidation or involuntary liquidation amount thereof, whichever is applicable,
plus accrued dividends thereon, all as fixed or provided for in subsection
4.2.2(c), above, with respect to the Series A Cumulative Preferred Stock or,
with respect to series not yet established, in the resolution or resolutions
providing for the issuance thereof, all before any amount shall be paid to the
holders of Common Stock. If upon the voluntary or involuntary liquidation or
winding-up of the Corporation the assets of the Corporation shall be
insufficient to pay the holders of all series of the Cumulative Preferred Stock
the entire amounts to which they may be entitled, the assets of the Corporation
shall, if more than one series be outstanding, be distributed among the
different series in proportion to the aggregate amounts which would be
distributable to the Cumulative Preferred Stock of each series if sufficient
assets were available. The holders of Cumulative Preferred Stock shall not
otherwise be entitled to participate in any distribution of assets of the
Corporation, which shall be divided or distributed among the holders of Common
Stock, and shall have no further rights of conversion. Whenever the distribution
provided for herein shall be paid in property other than cash, the value of such
distribution shall be the fair market value of such property as determined in
good faith by the Board of Directors of the Corporation. No consolidation or
merger of the Corporation with or into another corporation or corporations and
no sale by the Corporation of all or substantially all of its assets shall be
deemed a liquidation or winding up of the Corporation.
4.5. VOTING RIGHTS.
4.5.1. Except as hereinafter in this Section 4.5
expressly provided and as provided by the Wisconsin Business
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Corporation Law, the holders of Cumulative Preferred Stock shall,
together with the holders of Common Stock (neither the Cumulative
Preferred Stock nor the Common Stock voting as a class) possess full
voting rights for the election of directors and for other purposes.
Holders of Common Stock shall be entitled to one (1) vote for each
share held. Holders of Cumulative Preferred Stock of all series shall
be entitled to such number of votes per share as are provided for in
Section 4.2.2(e), above, with respect to the Series A Cumulative
Preferred Stock or, with respect to series not yet established as shall
be stated in the resolution or resolutions of the Board of Directors
providing for the issuance thereof.
4.5.2. So long as any shares of Cumulative Preferred
Stock are outstanding, the Corporation shall not, without the
affirmative vote as provided by law of the holders of at least
two-thirds (2/3) of the outstanding shares of Cumulative Preferred
Stock, voting as a class,
(a) create or authorize any class of stock
ranking either as to the payment of dividends or distribution
of assets prior to or on parity with the Cumulative Preferred
Stock or increase the number of authorized shares of
Cumulative Preferred Stock;
(b) change the preferences, limitations or
relative rights with respect to any series of the outstanding
Cumulative Preferred Stock so as to materially and adversely
alter in any respect the rights of the holders thereof.
4.6. ACQUISITION OF SHARES. The Corporation shall have the
right to purchase, take, receive or otherwise acquire its own shares in
accordance with applicable law regardless of the availability of unreserved and
unrestricted earned surplus and without earned surplus being restricted thereby.
Except as hereinafter expressly provided with respect to the Series A Cumulative
Preferred Stock, shares of Cumulative Preferred Stock so acquired, as well as
the shares of Cumulative Preferred Stock acquired upon redemption or conversion
of Cumulative Preferred Stock, shall become authorized and unissued shares of
Cumulative Preferred Stock which may be designated as shares of any series. No
share or shares of Series A Cumulative Preferred Stock acquired by the
Corporation by reason of redemption, purchase, conversion or otherwise shall be
reissued, and all such shares shall be cancelled, retired and eliminated from
the shares which the Corporation shall be authorized to issue. The Corporation
shall from time to time amend these Articles to reduce the
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authorized number of shares of the Cumulative Preferred Stock accordingly.
4.7. NO NONVOTING SECURITIES. The Corporation shall
not authorize the issuance of any nonvoting equity securities.
ARTICLE V
PREEMPTIVE RIGHTS
Each holder of any stock of the Corporation shall have
preemptive rights to acquire, upon the same terms and conditions as such shares
are proposed to be acquired by others, unissued shares of Common Stock or
securities convertible into such shares or carrying a right to subscribe to or
acquire such shares, including, but not limited to, the right to acquire such
shares or securities issued to directors, officers or employees, or to acquire
such shares or securities issued for other than cash consideration, or to
acquire treasury shares. Each holder of Cumulative Preferred Stock shall be
entitled to such preemptive rights to the same extent as a holder of the number
of shares of Common Stock into which such shares of Cumulative Preferred Stock
might have been converted immediately prior to the exercise of such preemptive
rights.
ARTICLE VI
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation is
1555 North RiverCenter Drive, Suite 201, Milwaukee, Wisconsin 53212, and the
name of the registered agent of the Corporation at such address is Gareth M.
Stevens.
3. This Amendment and Restatement was approved by the
United States Bankruptcy Court, Eastern District of Wisconsin (the "Court")
on November 30, 1992, pursuant to the Court's Order Confirming Plan
(the "Order").
4. The Order was entered in the reorganization proceeding
captioned IN RE GARETH STEVENS, INC., Case No. 91-07849-CNC.
5. The Court has jurisdiction of the above-captioned
proceeding pursuant to 28 U.S.C. Section 1334.
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6. The effective date of this Amendment is the Confirmation
Date (as such term is defined in the Debtor's Plan of Reorganization confirmed
pursuant to the Court's Order) and this Amendment shall be filed as of such
date.
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Gareth M. Stevens, President
[Corporate Seal]
---------------------------------
David C. Miller, Secretary
STATE OF WISCONSIN )
) SS
COUNTY OF MILWAUKEE )
Personally appeared before me this ____ day of December, 1992,
the above-named Gareth M. Stevens and David C. Miller, to me known to be the
President and Secretary, respectively, of GARETH STEVENS, INC., who subscribed
their names to the foregoing instrument and acknowledged that they executed the
same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
---------------------------------
Notary Public, State of Wisconsin
My commission:
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This instrument was drafted by
and should be returned to:
Kristin A. Roeper, Esq.
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, Wisconsin 53202
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