Exhibit 3(a)
TRW Inc.
AMENDED ARTICLES OF INCORPORATION
As Amended April 24, 1996
AMENDED ARTICLES OF INCORPORATION
OF
TRW INC.
First: The name of the Corporation shall be TRW Inc.
Second: The principal office of the Corporation shall be located in
Lyndhurst, Cuyahoga County, Ohio.
Third: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under the General Corporation Law
of the State of Ohio.
Fourth: The number of shares which the Corporation is authorized to have
outstanding is 255,099,536, which shall be classified as follows:
99,536 shares of Serial Preference Stock without par value (hereinafter
called "Serial Preference Stock");
5,000,000 shares of Serial Preference Stock II without par value
(hereinafter called "Serial Preference Stock II"); and
250,000,000 shares of Common Stock of the par value of $0.625 each
(hereinafter called "Common Stock").
Each share of Common Stock of the par value of $1.25 each heretofore
authorized and issued is hereby changed into two shares of Common Stock of the
par value of $0.625 each.
The shares of such classes of stock shall have the following express terms:
DIVISION A
EXPRESS TERMS OF CUMULATIVE PREFERRED STOCK
[All outstanding shares of the Cumulative Preferred Stock were
redeemed on June 15, 1979. The provisions of this Division A, together
with other references to the Cumulative Preferred Stock in these Amended
Articles of Incorporation, were deleted by action of the Directors of the
Corporation on July 18, 1979.]
DIVISION B
EXPRESS TERMS OF SERIAL PREFERENCE STOCK
SECTION 1. The Serial Preference Stock may be issued from time to
time in one or more series. All shares of Serial Preference Stock shall be
of equal rank and shall be identical, except in respect of the particulars
that may be fixed and determined by the Board of Directors as hereinafter
provided, and each share of each series shall be identical in all respects
with all other shares of such series, except as to the date from which
dividends are cumulative. All shares of Serial Preference Stock shall also
be of equal rank and shall be identical with shares of Serial Preference
Stock II except in respect of (1) the particulars that may be fixed and
determined by the Board of Directors as hereinafter provided, (2) the
amount which the holders of Serial Preference Stock of any series are
entitled to receive in case of involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, as fixed and determined by
Section 5(a)(ii) of this Division, and (3) the voting rights and provisions
for consents relating to Serial Preference Stock, as fixed and determined
by Section 6 of this Division. Subject to the provisions of Sections 2
through 8, inclusive, of this Division, which provisions shall apply to all
Serial Preference Stock, the Board of Directors hereby is empowered to
cause the same to be issued in one or more series and with respect to each
such series prior to the issuance thereof to fix and determine:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
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(b) the number of shares of the series, which number may be
increased (except where otherwise provided by the Board of Directors
in creating the series) or decreased (but not below the number of
shares thereof then outstanding) by like action of the Board of
Directors;
(c) the annual dividend rate of the series;
(d) the dates at which dividends, if declared, shall be payable;
(e) the redemption rights and price or prices, if any, for
shares of the series;
(f) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(g) the amounts payable on shares of the series in the event of
any voluntary liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices and the
adjustments thereof, if any, and all other terms and conditions upon
which such conversion may be made; and
(i) restrictions (in addition to those set forth in Section 6(b)
and 6(c) of this Division) on the issuance of shares of the same
series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation of the Corporation, fixing and
determining, with respect to each such series, the matters described in
clauses (a) through (i), inclusive, of this Section 1.
SECTION 2. The holders of the Serial Preference Stock of each series,
in preference to the holders of Common Stock and of any other class of
shares ranking junior to the Serial Preference Stock, shall be entitled to
receive out of any funds legally available for Serial Preference Stock and
Serial Preference Stock II and when and as declared by the Board of
Directors dividends in cash at the rate for such series fixed in accordance
with the provisions of Section 1 of this Division and no more, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after
the date of issuance thereof. No dividends may be paid upon or declared or
set apart for any of the Serial Preference Stock for any quarterly dividend
period unless at the same time (i) a like proportionate dividend for the
same quarterly dividend period, ratably in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared or set
apart for all Serial Preference Stock of all series then issued and
outstanding and entitled to receive such dividend, and (ii) the dividend
payable during the same quarterly dividend period upon all Serial
Preference Stock II of all series then issued and outstanding at the rate
and upon the date as fixed and determined by the Board of Directors as
provided in Section 1 of Division C hereof shall be paid upon or declared
or set apart for all such Serial Preference Stock II entitled to receive
such dividend.
SECTION 3. In no event so long as any Serial Preference Stock shall
be outstanding shall any dividends, except a dividend payable in Common
Stock or other shares ranking junior to the Serial Preference Stock, be
paid or declared or any distribution be made except as aforesaid on the
Common Stock or any other shares ranking junior to the Serial Preference
Stock, nor shall any Common Stock or any other shares ranking junior to the
Serial Preference Stock be purchased, retired or otherwise acquired by the
Corporation (except out of the proceeds of the sale of Common Stock or
other shares ranking junior to the Serial Preference Stock received by the
Corporation subsequent to January 1, 1964):
(a) unless all accrued and unpaid dividends on Serial Preference
Stock, including the full dividends for the current quarterly dividend
period, shall have been declared and paid or a sum sufficient for
payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Serial Preference Stock of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 1 of this Division.
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SECTION 4.
(a) Subject to the express terms of each series, the Corporation
may from time to time redeem all or any part of the Serial Preference
Stock of any series at the time outstanding (i) at the option of the
Board of Directors at the applicable redemption price for such series
fixed in accordance with the provisions of Section 1 of this Division,
or (ii) in fulfillment of the requirements of any sinking fund
provided for shares of such series at the applicable sinking fund
redemption price fixed in accordance with the provisions of Section 1
of this Division, together in each case with accrued dividends to the
redemption date.
(b) Notice of every such redemption shall be mailed, postage
prepaid, to the holders of record of the Serial Preference Stock to be
redeemed at their respective addresses then appearing on the books of
the Corporation, and shall be published at least once in a newspaper
of general circulation in the City of New York, New York, not less
than thirty (30) days nor more than sixty (60) days prior to the date
fixed for such redemption. At any time before or after notice has
been given as above provided, the Corporation may deposit the
aggregate redemption price of the shares of Serial Preference Stock to
be redeemed with any bank or trust company in the City of Cleveland,
Ohio, or the City of New York, New York, having capital and surplus of
more than Five Million Dollars ($5,000,000), named in such notice,
directed to be paid to the respective holders of the shares of Serial
Preference Stock so to be redeemed, in amounts equal to the redemption
price of all shares of Serial Preference Stock so to be redeemed, on
surrender of the stock certificate or certificates held by such
holders, and upon the making of such deposit such holders shall cease
to be shareholders with respect to such shares, and after such notice
shall have been given and such deposit shall have been made such
holders shall have no interest in or claim against the Corporation
with respect to such shares and shall be entitled only to receive such
moneys from such bank or trust company without interest. In case less
than all of the outstanding shares of Serial Preference Stock are to
be redeemed, the Corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by its Board of
Directors.
If the holders of shares of Serial Preference Stock which shall
have been called for redemption shall not, within six years after such
deposit, claim the amount deposited for the redemption thereof, any
such bank or trust company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all responsibility in
respect thereof and to such holders.
(c) Any shares of Serial Preference Stock which are redeemed by
the Corporation pursuant to the provisions of this Section 4 and any
shares of Serial Preference Stock which are purchased and delivered in
satisfaction of any sinking fund requirements provided for shares of
such series and any shares of Serial Preference Stock which are
converted in accordance with the express terms thereof shall be
cancelled and not reissued. Any shares of Serial Preference Stock
otherwise acquired by the Corporation shall resume the status of
authorized and unissued shares of Serial Preference Stock without
serial designation.
SECTION 5.
(a) The holders of the Serial Preference Stock of any series
shall, in case of liquidation, dissolution or winding up of the
affairs of the Corporation, be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount
shall be paid or distributed among the holders of the Common Stock or
any other shares ranking junior to the Serial Preference Stock:
(i) in the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Corporation, the amounts fixed with
respect to shares of such series in accordance with Section 1 of this
Division; or
(ii) in the event of any involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, $100 per share;
plus in either event an amount equal to all dividends accrued and
unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the
Corporation. In case the net assets of the Corporation legally
available therefor are insufficient to permit
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the payment upon all outstanding shares of Serial Preference Stock and
Serial Preference Stock II of the full preferential amount to which
they are respectively entitled, then such net assets shall be
distributed ratably to all outstanding shares of Serial Preference
Stock and Serial Preference Stock II in proportion to the full
preferential amount to which each such share is entitled.
After payment to holders of Serial Preference Stock of the full
preferential amounts as aforesaid, holders of Serial Preference Stock,
as such, shall have no right or claim to any of the remaining assets
of the Corporation.
(b) The merger or consolidation of the Corporation into or with
any other corporation, or the merger of any other corporation into it,
or the sale, lease or conveyance of all or substantially all the
property of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes
of this Section 5.
SECTION 6.
(a) The holders of Serial Preference Stock shall be entitled at
all times to two votes for each share, and, except as otherwise
provided herein or required by law, the holders of the Serial
Preference Stock, the holders of Serial Preference Stock II and the
holders of Common Stock of the Corporation shall vote together as one
class on all matters, subject, however, to the special voting rights
conferred upon the holders of Serial Preference Stock II as
hereinafter provided in Section 6 of Division C hereof.
If, and so often as, the Corporation shall be in default in the
payment of the equivalent of six (6) full quarterly dividends on all
shares of all series of Serial Preference Stock at the time
outstanding, whether or not earned or declared, the holders of Serial
Preference Stock of all series, voting separately as a class and in
addition to all other rights to vote for Directors, shall be entitled
to elect as herein provided, three (3) members of the Board of
Directors of the Corporation; provided, however, that the holders of
shares of Serial Preference Stock shall not have or exercise such
special class voting rights except at meetings of the shareholders for
the election of Directors at which the holders of not less than
thirty-five per cent (35%) of the outstanding shares of Serial
Preference Stock of all series then outstanding are present in person
or by proxy; and provided, further, that the special class voting
rights provided for herein when the same shall have become vested,
shall remain so vested until all accrued unpaid dividends on the
Serial Preference Stock of all series then outstanding shall have been
paid, whereupon the holders of the Serial Preference Stock shall be
divested of their special class voting rights in respect of subsequent
elections of Directors, subject to the revesting of such special class
voting rights in the event hereinabove specified in this Section.
In the event of default entitling the holders of Serial
Preference Stock to elect three (3) Directors as above specified, a
special meeting of the shareholders for the purpose of electing such
Directors shall be called by the Secretary of the Corporation upon
written request of, or may be called by, the holders of record of at
least ten per cent (10%) of the shares of Serial Preference Stock of
all series at the time outstanding, and notice thereof shall be given
in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall not be
required to call such special meeting if the annual meeting of
shareholders shall be held within ninety (90) days after the date of
receipt of the foregoing written request from the holders of Serial
Preference Stock. At any meeting at which the holders of the Serial
Preference Stock shall be entitled to elect Directors, the holders of
thirty-five per cent (35%) of the then outstanding shares of Serial
Preference Stock of all series, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of the holders of a
majority of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the members of the
Board of Directors which the holders of the Serial Preference Stock
are entitled to elect as hereinabove provided.
(b) The consent of the holders of at least two-thirds of the
number of shares of Serial Preference Stock at the time outstanding
given in person or by proxy, either in writing or at a meeting called
for the purpose at which the holders of the Serial Preference Stock
shall vote separately as a class, shall be
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necessary to effect any one or more of the following (but so far as
the holders of Serial Preference Stock are concerned, such action may
be effected with such consent):
(i) any amendment, alteration or repeal of any of the
provisions of these Articles of Incorporation, as the same may at
any time be amended, or of the Regulations of the Corporation
which affects adversely the voting powers, rights or preferences
of the holders of Serial Preference Stock or reduces the time for
any notice to which the holders of Serial Preference Stock may be
entitled; provided, however, that, for the purpose of this clause
(i) only, neither the amendment of these Articles of
Incorporation, as the same may at any time be amended, so as to
authorize or create, or to increase the authorized amount of,
Serial Preference Stock or of any shares of any class ranking on
a parity with or junior to the Serial Preference Stock, nor the
amendment of the provisions of the Regulations so as to increase
the number of Directors of the Corporation, shall be deemed to
affect adversely the voting powers, rights or preferences of the
holders of the Serial Preference Stock; and provided further,
that if such amendment, alteration or repeal affects adversely
the rights or preferences of one or more but not all series of
Serial Preference Stock at the time outstanding, only the consent
of the holders of at least two-thirds of the number of the shares
of the series so affected shall be required;
(ii) the authorization or creation of, or the increase in
the authorized amount of, any shares of any class, or any
security convertible into shares of any class, ranking prior to
the Serial Preference Stock; or
(iii) the purchase or redemption (for sinking fund purposes
or otherwise) of less than all of the Serial Preference Stock
then outstanding except in accordance with a stock purchase offer
made to all holders of record of Serial Preference Stock, unless
all dividends upon all Serial Preference Stock then outstanding
for all previous quarterly dividend periods shall have been
declared and paid or funds therefor set apart and all accrued
sinking fund obligations applicable thereto shall have been
complied with.
(c) The consent of the holders of at least a majority of the
number of shares of Serial Preference Stock at the time outstanding,
given in person or by proxy either in writing or at a meeting called
for the purpose at which the holders of the Serial Preference Stock
shall vote separately as a class, shall be necessary to effect any one
or more of the following (but so far as the holders of Serial
Preference Stock are concerned, such action may be effected with such
consent):
(i) the sale, lease or conveyance by the Corporation of
all or substantially all of its property or business or the
voluntary parting with the control thereof, or its consolidation
with or merger into any other corporation, unless the corporation
resulting from such consolidation or merger will have after such
consolidation or merger no class of shares either authorized or
outstanding ranking prior to or on a parity with the Serial
Preference Stock except the same number of shares ranking prior
to or on a parity with the Serial Preference Stock and having the
same rights and preferences as the shares of the Corporation
authorized and outstanding immediately preceding such
consolidation or merger, and each holder of Serial Preference
Stock immediately preceding such consolidation or merger shall
receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(ii) The authorization of any shares ranking on a parity
with the Serial Preference Stock or an increase in the authorized
number of shares of Serial Preference Stock.
(d) Neither the consent of, nor any adjustment of the voting
rights of, holders of shares of Serial Preference Stock shall be
required for an increase in the number of shares of Common Stock
authorized or issued or for stock splits of the Common Stock or for
stock dividends on any class of stock payable solely in Common Stock,
and none of the foregoing actions shall be deemed to affect adversely
the voting powers, rights or preferences of Serial Preference Stock
within the meaning and for the purpose of this Division B.
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SECTION 7. The holders of the Serial Preference Stock shall have no
pre-emptive right to purchase or have offered to them for purchase any
shares or other securities of the Corporation, whether now or hereafter
authorized.
SECTION 8. For the purposes of this Division B:
Whenever reference is made to shares "ranking prior to the Serial
Preference Stock", such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of an involuntary
liquidation, dissolution or winding up of the Corporation are given
preference over the rights of the holders of Serial Preference Stock;
whenever reference is made to shares "on a parity with the Serial
Preference Stock", such reference shall mean and include all shares of
Serial Preference Stock II and all other shares of the Corporation in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of an involuntary
liquidation, dissolution or winding up of the Corporation rank on an
equality (except as to the amounts fixed therefor) with the rights of the
holders of Serial Preference Stock; and whenever reference is made to
shares "ranking junior to the Serial Preference Stock" such reference shall
mean and include all shares of the Corporation in respect of which the
rights of the holders as to the payment of dividends and as to
distributions in the event of an involuntary liquidation, dissolution or
winding up of the Corporation are junior and subordinate to the rights of
the holders of the Serial Preference Stock.
DIVISION B-1
EXPRESS TERMS OF $4.25 CUMULATIVE PREFERENCE STOCK,
SERIES A, CONVERTIBLE ON OR BEFORE JUNE 15, 1979
[All outstanding shares of the $4.25 Cumulative Preference Stock,
Series A, were redeemed on June 15, 1979. The provisions of this Division
B-1 were deleted by action of the Directors of the Corporation on
July 18, 1979.]
DIVISION B-2
EXPRESS TERMS OF $5.00 CUMULATIVE PREFERENCE STOCK,
SERIES B, CONVERTIBLE ON OR BEFORE JUNE 15, 1982
[All outstanding shares of the $5.00 Cumulative Preference Stock,
Series B, were redeemed on June 15, 1979. The provisions of this Division
B-2 were deleted by action of the Directors of the Corporation on
July 18, 1979.]
DIVISION C
EXPRESS TERMS OF SERIAL PREFERENCE STOCK II
SECTION 1. The Serial Preference Stock II may be issued from time to
time in one or more series. All shares of Serial Preference Stock II shall
be of equal rank and shall be identical, except in respect of the
particulars that may be fixed and determined by the Board of Directors as
hereinafter provided, and each share of each series shall be identical in
all respects with all other shares of such series, except as to the date
from which dividends are cumulative. All shares of Serial Preference Stock
II shall also be of equal rank and shall be identical with shares of Serial
Preference Stock except in respect of (1) the particulars that may be fixed
and determined by the Board of Directors as hereinafter provided, and (2)
the voting rights and provisions for consents relating to Serial Preference
Stock II, as fixed and determined by Section 6 of this Division. Subject
to the provisions of Sections 2 through 8, inclusive, of this Division,
which provisions shall apply to all Serial Preference Stock II, the Board
of Directors hereby is empowered to cause the same to be issued in one or
more series and with respect to each such series prior to the issuance
thereof to fix and determine:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
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(b) the number of shares of the series, which number may be
increased (except where otherwise provided by the Board of Directors
in creating the series) or decreased (but not below the number of
shares thereof then outstanding) by like action of the Board of
Directors;
(c) the annual dividend rate of the series;
(d) the dates at which dividends, if declared, shall be payable
and the dates from which dividends shall be cumulative;
(e) the redemption rights and price or prices, if any, for
shares of the series;
(f) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(g) the amounts payable on shares of the series in the event of
any liquidation, dissolution or winding up of the affairs of the
Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices and the
adjustments thereof, if any, and all other terms and conditions upon
which such conversion may be made; and
(i) restrictions (in addition to those set forth in Section 6(b)
and 6(c) of this Division) on the issuance of shares of the same
series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation of the Corporation fixing and
determining, with respect to each such series, the matters described in
clauses (a) through (i), inclusive, of this Section 1.
SECTION 2. The holders of the Serial Preference Stock II of each
series, in preference to the holders of Common Stock and of any other class
of shares ranking junior to the Serial Preference Stock II, shall be
entitled to receive out of any funds legally available for Serial
Preference Stock II and Serial Preference Stock and when and as declared by
the Board of Directors dividends in cash at the rate for such series fixed
in accordance with the provisions of Section 1 of this Division and no
more, payable quarterly on the dates fixed for such series. Such dividends
shall be cumulative, in the case of shares of each particular series, from
and after the date of issuance thereof or from and after such other date or
dates as may be fixed and determined by the Board of Directors by amendment
to the Articles of Incorporation of the Corporation as provided in Section
1 of this Division. No dividends may be paid upon or declared or set apart
for any of the Serial Preference Stock II for any quarterly dividend period
unless at the same time (i) a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the respective annual
dividend rates fixed therefor, shall be paid upon or declared or set apart
for all Serial Preference Stock II of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividend
payable during the same quarterly dividend period upon all Serial
Preference Stock of all series then issued and outstanding at the rate and
upon the date as fixed and determined by the Board of Directors as provided
in Section 1 of Division B hereof shall be paid upon or declared or set
apart for all such Serial Preference Stock entitled to receive such
dividend.
SECTION 3. In no event so long as any Serial Preference Stock II
shall be outstanding shall any dividends, except a dividend payable in
Common Stock or other shares ranking junior to the Serial Preference Stock
II, be paid or declared or any distribution be made except as aforesaid on
the Common Stock or any other shares ranking junior to the Serial
Preference Stock II, nor shall any Common Stock or any other shares ranking
junior to the Serial Preference Stock II be purchased, retired or otherwise
acquired by the Corporation (except out of the proceeds of the sale of
Common Stock or other shares ranking junior to the Serial Preference Stock
II received by the Corporation subsequent to January 1, 1964):
(a) unless all accrued and unpaid dividends on Serial Preference
Stock II, including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum sufficient
for payment thereof set apart; and
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(b) unless there shall be no arrearages with respect to the
redemption of Serial Preference Stock II of any series from any
sinking fund provided for shares of such series in accordance with the
provisions of Section 1 of this Division.
SECTION 4.
(a) Subject to the express terms of each series, the Corporation may
from time to time redeem all or any part of the Serial Preference Stock II
of any series at the time outstanding (i) at the option of the Board of
Directors at the applicable redemption price for such series fixed in
accordance with the provisions of Section 1 of this Division, or (ii) in
fulfillment of the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Division, together in
each case with accrued dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Serial Preference Stock II to be redeemed
at their respective addresses then appearing on the books of the
Corporation, and shall be published at least once in a newspaper of general
circulation in the City of New York, New York, not less than thirty (30)
days nor more than sixty (60) days prior to the date fixed for such
redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Serial Preference Stock II to be redeemed with any bank or trust
company in the City of Cleveland, Ohio, or the City of New York, New York,
having capital and surplus of more than Five Million Dollars ($5,000,000),
named in such notice, directed to be paid to the respective holders of the
shares of Serial Preference Stock II so to be redeemed, in amounts equal to
the redemption price of all shares of Serial Preference Stock II so to be
redeemed, on surrender of the stock certificate or certificates held by
such holders, and upon the making of such deposit such holders shall cease
to be shareholders with respect to such shares, and after such notice shall
have been given and such deposit shall have been made, such holders shall
have no interest in or claim against the Corporation with respect to such
shares and shall be entitled only to receive such moneys from such bank or
trust company without interest. In case less than all of the outstanding
shares of Serial Preference Stock II are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such manner as shall be
prescribed by its Board of Directors.
If the holders of shares of Serial Preference Stock II which shall
have been called for redemption shall not, within six years after such
deposit, claim the amount deposited for the redemption thereof, any such
bank or trust company shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust company and the
Corporation shall be relieved of all responsibility in respect thereof and
to such holders.
(c) Any shares of Serial Preference Stock II which are redeemed by
the Corporation pursuant to the provisions of this Section 4 and any shares
of Serial Preference Stock II which are purchased and delivered in
satisfaction of any sinking fund requirements provided for shares of such
series and any shares of Serial Preference Stock II which are converted in
accordance with the express terms thereof shall be cancelled and not
reissued. Any shares of Serial Preference Stock II otherwise acquired by
the Corporation shall resume the status of authorized and unissued shares
of Serial Preference Stock II without serial designation.
SECTION 5.
(a) The holders of the Serial Preference Stock II of any series shall,
in case of liquidation, dissolution or winding up of the affairs of the
Corporation, be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares
ranking junior to the Serial Preference Stock II, the amounts fixed with
respect to shares of such series in accordance with Section 1 of this
Division, plus an amount equal to all dividends accrued and unpaid thereon
to the date of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation. In case the
net assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding shares of Serial Preference
Stock and Serial Preference Stock II of the full preferential amount to
which they
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are respectively entitled, then such net assets shall be distributed
ratably to all outstanding shares of Serial Preference Stock and Serial
Preference Stock II in proportion to the full preferential amount to which
each such share is entitled.
After payment to holders of Serial Preference Stock II of the full
preferential amounts as aforesaid, holders of Serial Preference Stock II,
as such, shall have no right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the
sale, lease or conveyance of all or substantially all the property of the
Corporation, shall not be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of this Section 5.
SECTION 6.
(a) The holders of Serial Preference Stock II shall be entitled at all
times to one vote for each share, and, except as otherwise provided herein
or required by law, the holders of the Serial Preference Stock II, the
holders of Serial Preference Stock and the holders of Common Stock shall
vote together as one class on all matters, subject, however, to the special
voting rights conferred upon the holders of Serial Preference Stock as
hereinabove provided in Section 6 of Division B hereof.
If, and so often as, the Corporation shall be in default in the
payment of the equivalent of six (6) full quarterly dividends on all shares
of all series of Serial Preference Stock II at the time outstanding,
whether or not earned or declared, the holders of Serial Preference Stock
II of all series, voting separately as a class and in addition to all other
rights to vote for Directors, shall be entitled to elect, as herein
provided, three (3) members of the Board of Directors of the Corporation;
provided, however, that the holders of shares of Serial Preference Stock II
shall not have or exercise such special class voting rights except at
meetings of the shareholders for the election of Directors at which the
holders of not less than thirty-five per cent (35%) of the outstanding
shares of Serial Preference Stock II of all series then outstanding are
present in person or by proxy; and provided further that the special class
voting rights provided for herein when the same shall have become vested
shall remain so vested until all accrued unpaid dividends on the Serial
Preference Stock II of all series then outstanding shall have been paid,
whereupon the holders of the Serial Preference Stock II shall be divested
of their special class voting rights in respect of subsequent elections of
Directors, subject to the revesting of such special class voting rights in
the event hereinabove specified in this Section.
In the event of default entitling the holders of Serial Preference
Stock II to elect three (3) Directors as above specified, a special meeting
of the shareholders for the purpose of electing such Directors shall be
called by the Secretary of the Corporation upon written request of, or may
be called by, the holders of record of at least ten per cent (10%) of the
shares of Serial Preference Stock II of all series at the time outstanding,
and notice thereof shall be given in the same manner as that required for
the annual meeting of shareholders; provided, however, that the Corporation
shall not be required to call such special meeting if the annual meeting of
shareholders shall be held within ninety (90) days after the date of
receipt of the foregoing written request from the holders of Serial
Preference Stock II. At any meeting at which the holders of the Serial
Preference Stock II shall be entitled to elect Directors, the holders of
thirty-five per cent (35%) of the then outstanding shares of Serial
Preference Stock II of all series, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a
majority of such shares so present at any such meeting at which there shall
be such a quorum shall be sufficient to elect the members of the Board of
Directors which the holders of the Serial Preference Stock II are entitled
to elect as hereinabove provided.
9
(b) The consent of the holders of at least two-thirds of the number
of shares of Serial Preference Stock II at the time outstanding given in
person or by proxy, either in writing or at a meeting called for the
purpose at which the holders of the Serial Preference Stock II shall vote
separately as a class, shall be necessary to effect any one or more of the
following (but so far as the holders of Serial Preference Stock II are
concerned, such action may be effected with such consent):
(i) any amendment, alteration or repeal of any of the
provisions of these Articles of Incorporation, as the same may at any
time be amended, or of the Regulations of the Corporation which
affects adversely the voting powers, rights or preferences of the
holders of Serial Preference Stock II or reduces the time for any
notice to which the holders of Serial Preference Stock II may be
entitled; provided, however, that neither the amendment of these
Articles of Incorporation, as the same may at any time be amended, so
as to authorize or create, or to increase the authorized amount of,
Serial Preference Stock II or of any shares of any class ranking on a
parity with or junior to the Serial Preference Stock II, nor the
amendment of the provisions of the Regulations so as to increase the
number of Directors of the Corporation, shall be deemed to affect
adversely the voting powers, rights or preferences of the holders of
the Serial Preference Stock II; and provided, further, that if such
amendment, alteration or repeal affects adversely the rights or
preferences of one or more but not all series of Serial Preference
Stock II at the time outstanding, only the consent of the holders of
at least two-thirds of the number of the shares of the series so
affected shall be required;
(ii) the authorization or creation of, or the increase in the
authorized amount of, any shares of any class, or any security
convertible into shares of any class, ranking prior to the Serial
Preference Stock II; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Serial Preference Stock II then
outstanding except in accordance with a stock purchase offer made to
all holders of record of Serial Preference Stock II, unless all
dividends upon all Serial Preference Stock II then outstanding for all
previous quarterly dividend periods shall have been declared and paid
or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.
(c) The consent of the holders of at least a majority of the number
of shares of Serial Preference Stock II at the time outstanding, given in
person or by proxy either in writing or at a meeting called for the purpose
at which the holders of the Serial Preference Stock II shall vote
separately as a class, shall be necessary to effect any one or more of the
following (but so far as the holders of Serial Preference Stock II are
concerned, such action may be effected with such consent):
(i) the sale, lease or conveyance by the Corporation of all or
substantially all of its property or business or the voluntary parting
with the control thereof, or its consolidation with or merger into any
other corporation, unless the corporation resulting from such
consolidation or merger will have after such consolidation or merger
no class of shares either authorized or outstanding ranking prior to
or on a parity with the Serial Preference Stock II except the same
number of shares ranking prior to or on a parity with the Serial
Preference Stock II and having the same rights and preferences as the
shares of the Corporation authorized and outstanding immediately
preceding such consolidation or merger, and each holder of Serial
Preference Stock II immediately preceding such consolidation or merger
shall receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(ii) the authorization of any shares ranking on a parity with
the Serial Preference Stock II or an increase in the authorized number
of shares of Serial Preference Stock II.
(d) Neither the consent of, nor any adjustment of the voting rights
of, holders of shares of Serial Preference Stock II shall be required for
an increase in the number of shares of Common Stock authorized or issued or
for stock splits of the Common Stock or for stock dividends on any class of
stock payable solely in Common Stock, and none of the foregoing actions
shall be deemed to affect adversely the voting powers, rights or
preferences of Serial Preference Stock II within the meaning and for the
purpose of this Division C.
10
SECTION 7. The holders of the Serial Preference Stock II shall have no
pre-emptive right to purchase or have offered to them for purchase any shares or
other securities of the Corporation, whether now or hereafter authorized.
SECTION 8. For the purposes of this Division C:
Whenever reference is made to shares "ranking prior to the Serial
Preference Stock II", such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of an involuntary
liquidation, dissolution or winding up of the Corporation are given preference
over the rights of the holders of Serial Preference Stock II; whenever reference
is made to shares "on a parity with the Serial Preference Stock II", such
reference shall mean and include all shares of Serial Preference Stock and all
other shares of the Corporation in respect of which the rights of the holders
thereof as to the payment of dividends and as to distributions in the event of
an involuntary liquidation, dissolution or winding up of the Corporation rank on
an equality (except as to the amounts fixed therefor) with the rights of the
holders of the Serial Preference Stock II; and whenever reference is made to
shares "ranking junior to the Serial Preference Stock II", such reference shall
mean and include all shares of the Corporation in respect of which the rights of
the holders as to the payment of dividends and as to distributions in the event
of an involuntary liquidation, dissolution or winding up of the Corporation are
junior and subordinate to the rights of the holders of the Serial Preference
Stock II.
DIVISION C-1
EXPRESS TERMS OF CUMULATIVE SERIAL PREFERENCE STOCK II,
$4.40 CONVERTIBLE SERIES 1
There is hereby established a first series of Serial Preference Stock
II, to which the following provisions shall be applicable:
SECTION 1. DESIGNATION OF SERIES. The series shall be designated
"Cumulative Serial Preference Stock II, $4.40 Convertible Series 1" (herein
called "Series 1").
SECTION 2. NUMBER OF SHARES. The number of shares of Series 1 is
1,735,000, which number from time to time may be increased or decreased
(but not below the number of shares of the series then outstanding) by the
Directors.
SECTION 3. DIVIDEND RATE. The dividend rate for Series 1 is $4.40 per
share per annum.
SECTION 4. DIVIDEND PAYMENT DATES; CUMULATION DATES. The dates on
which dividends on shares of Series 1 shall be payable are March 15, June
15, September 15 and December 15 of each year. Dividends on shares of
Series 1 shall be cumulative as follows:
(a) in the case of shares of Series 1 issued on the effective
date of the mergers of IRC, Inc. and United-Carr Incorporated into the
Corporation, dividends shall be cumulative from such effective date;
(b) in the case of shares of Series 1 issued during the period
commencing immediately after the record date for a dividend on shares
of such series and terminating at the close of the payment date for
such dividend, dividends shall be cumulative from such last-mentioned
dividend payment date; and
(c) in all other cases, dividends shall be cumulative from the
dividend payment date next preceding the date of issue of such shares.
11
SECTION 5. REDEMPTION PRICES. The shares of Series 1 shall not be
redeemable by the Corporation prior to March 15, 1974. Thereafter the
redemption prices for shares of Series 1 shall be as follows:
IF THE REDEMPTION DATE
IS DURING 12-MONTH
PERIOD BEGINNING REDEMPTION
MARCH 15 PRICE
-------- -----
1974 $112.00
1975 110.00
1976 108.00
1977 106.00
1978 and thereafter 104.00
SECTION 6. LIQUIDATION RIGHTS. The amount payable on shares of
Series 1 in the event of any voluntary liquidation, dissolution or winding
up of the affairs of the Corporation prior to March 15, 1974 shall be
$112.00 per share and thereafter shall be an amount equal to the redemption
price for shares of Series 1 in effect on the distribution date, and in the
event of any involuntary liquidation, dissolution or winding up of the
Corporation shall be $104.00 per share.
SECTION 7. CONVERSION RIGHT.
(a) Subject to and upon compliance with the provisions of this Section
7, shares of Series 1 may, at the option of the holder at any time (or, in
the case of shares called for redemption, then until and including the
close of business on the date fixed for redemption but not thereafter if
payment of the redemption price has been duly provided for by the date
fixed for redemption), be converted into shares of Common Stock (as such
shares shall be constituted at the conversion date) at the conversion price
in effect at the conversion date.
(b) The holder of each share of Series 1 may exercise the conversion
privilege in respect thereof by delivering to any transfer agent of Series
1 the share to be converted, accompanied by written notice that the holder
elects to convert such share. Conversion shall be deemed to have been
effected immediately prior to the close of business on the date when such
delivery is made, and such date is referred to in this Section as the
"conversion date". On the conversion date or as promptly thereafter as
practicable, the Corporation shall issue and deliver to the holder of
shares of Series 1 surrendered for conversion, or on his written order, a
certificate for the number of full shares of Common Stock issuable upon the
conversion of such shares of Series 1 and a check or cash in respect of any
fraction of a share as provided in paragraph (c) of this Section 7. The
person in whose name the stock certificate is to be issued shall be deemed
to have become a holder of Common Stock of record on the conversion date.
No adjustment shall be made for any dividends on such shares of Series 1 or
for dividends on the shares of Common Stock issued on conversion.
(c) The Corporation shall not be required to issue fractional shares
of Common Stock upon conversion of shares of Series 1. If more than one
share of Series 1 shall be surrendered for conversion at one time by the
same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number
of shares so surrendered. If any fractional interest in a share of Common
Stock would be deliverable upon the conversion of any shares of Series 1,
the Corporation shall, in lieu of delivering the fractional share therefor,
make an adjustment therefor in cash at the current market value thereof,
computed on the basis of the last reported sale price of the shares of
Common Stock on the New York Stock Exchange on the last business day before
the conversion date or, if there was no reported sale on that day, on the
basis of the mean of the closing bid and asked quotations on that Exchange
on that day, or, if the Common Stock is not then listed on that Exchange,
on the basis of the mean of the closing bid and asked quotations in the
over-the-counter market on that day, as reported by the National Quotation
Bureau, or similar reporting service.
(d) Unless and until an adjusted conversion price of the Common Stock
is required to be computed as hereinafter provided, the conversion price
for such Common Stock shall be $90.909 per share (this initial conversion
price being herein called the "base conversion price"). The number of
shares of
12
Common Stock issuable upon conversion of one share of Series 1 shall be
determined by dividing $100 by the conversion price then in effect.
(e) The conversion price shall be adjusted from time to time as
follows:
(A) Except as provided in subparagraphs (C), (E) and (F) below,
whenever the Corporation shall issue or sell any Additional Shares as
hereinafter defined for a consideration per share less than the
conversion price then in effect, or without consideration, the
conversion price in effect immediately prior to such issuance shall
forthwith be adjusted as follows:
(1) multiply the base conversion price by the sum of (i)
the total number of shares of Common Stock outstanding (excluding
shares held in the Corporation's treasury) on November 16, 1967
and (ii) the total number of shares of Common Stock issuable on
November 16, 1967 upon conversion of any shares of Serial
Preference Stock then outstanding (the sum of such shares being
herein called the "Base Shares"), then
(2) add to the result so obtained the total consideration
received by the Corporation for all Additional Shares, and then
(3) divide such result by the sum of the number of Base
Shares and the number of Additional Shares, disregarding in the
quotient so obtained fractions of one cent;
provided, however, that such adjustment shall be made only if the
resulting quotient shall be less than the conversion price in effect
immediately prior to the issue or sale of such Additional Shares.
(B) For the purposes of subparagraph (A) above, the following
provisions shall be applicable:
(1) The term "Additional Shares" shall mean all shares of
Common Stock issued by the Corporation (whether or not the
consideration therefor, if any, is less per share than the base
conversion price) in excess of the Base Shares, whether or not
subsequently reacquired or retired by the Corporation, other
than:
(i) shares now or hereafter held in the Corporation's
treasury;
(ii) shares issued pursuant to any employees' stock
purchase plan or any employees' stock option plan heretofore
or hereafter adopted or approved by the shareholders of the
Corporation and shares issued pursuant to any employees'
stock purchase plan or employees' stock option agreement
heretofore or hereafter assumed by the Corporation,
including in the case of any plan or agreement covered by
this clause (ii) shares of Common Stock issued upon the
conversion of convertible securities so issued;
(iii) except as provided in paragraph (4) below, shares
of Common Stock issued in connection with the acquisition by
the Corporation of the properties, assets and business of
another corporation, firm or other entity as a going concern
(whether such acquisition is by way of a merger, combination
or majority share acquisition or otherwise) and shares of
Common Stock issued upon conversion of any convertible
securities issued by the Corporation in connection with any
such acquisition (as used herein, the terms "combination"
and "majority share acquisition" shall have the meanings set
forth in Section 1701.01 of the Ohio Revised Code); and
(iv) shares issued by way of dividend or other
distribution on shares of Common Stock excluded from the
definition of Additional Shares by the foregoing clauses
(i), (ii) and (iii) or this clause (iv) or on shares
resulting from any subdivision or combination of shares so
excluded.
(2) In case of the issuance or sale of Additional Shares
for cash, the consideration therefor shall be deemed to be the
amount of cash received by the Corporation for such shares (or,
if such Additional Shares are offered by the Corporation for
subscription, the subscription price, or, if such Additional
Shares are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering
price), without deducting therefrom any
13
compensation or discount in the sale, underwriting or purchase
thereof by underwriters or dealers or others performing similar
services or for any expenses incurred by the Corporation in
connection therewith.
(3) Subject to the provisions of paragraph (4) below, in
the case of issuance or sale of Additional Shares for a
consideration other than cash, the amount of such consideration
shall be deemed to be the fair value thereof as determined by the
Directors of the Corporation, for purposes of this subparagraph
(B), irrespective of any accounting treatment.
(4) Subject to clause (iii) of this paragraph (4):
(i) any shares of Common Stock issued in connection
with any merger of IRC, Inc. into the Corporation shall
constitute Additional Shares and shall be deemed to have
been issued for a consideration equal to the conversion
price in effect immediately prior to the issuance of such
Additional Shares;
(ii) in the case of the issuance of any shares of
Preference Stock II in connection with any merger of
United-Carr Incorporated or IRC, Inc. into the Corporation,
any shares of Common Stock into which such shares of
Preference Stock II are initially convertible shall
constitute Additional Shares and shall be deemed to have
been issued at the time of the issuance of such shares of
Preference Stock II for a consideration equal to the
conversion price of Series 1 in effect immediately prior to
the issuance of such shares of Preference Stock II; and
(iii) no shares of Common Stock covered by clauses (i)
or (ii) of this paragraph (4) in excess of an aggregate of
1,221,569 shares (proportionately adjusted to reflect any
split or combination of, or stock dividend paid on, the
Common Stock prior to the effective dates of said mergers)
shall at any time constitute Additional Shares.
(5) In the case of issuance of Additional Shares as a stock
dividend of 15% or less, the shares shall be deemed to have been
issued without consideration at the close of business on the
dividend record date.
(6) Subject to the provisions of paragraph (4) above, in
the case of the issuance of Additional Shares upon conversion or
exchange of other securities of the Corporation, the amount of
consideration received by the Corporation shall be deemed to be
the total of (a) the amount of consideration, if any, received by
the Corporation upon the issuance of such other securities, plus
(b) the amount of the consideration, if any, other than such
other securities, received by the Corporation upon such
conversion or exchange. In determining the amount of the
consideration received by the Corporation upon the issuance of
such other securities, the amount of the consideration in cash
and other than cash shall be determined pursuant to paragraphs
(2) and (3) above. If securities of the same class or series of
a class as such other securities were issued for different
amounts of consideration (determined as above provided), or if
some were issued for no consideration, then the amount of the
consideration received by the Corporation upon the issuance of
each of the securities of such class or series, as the case may
be, shall be deemed to be the average amount of the consideration
received by the Corporation upon the issuance of all the
securities of such class or series, as the case may be.
(C) If, at any time after November 16, 1967, the Corporation
splits or combines the outstanding shares of Common Stock, then as of
the close of business on the effective date of such split or
combination the conversion price shall be proportionately decreased in
the case of a split or increased in the case of a combination. A
stock dividend of more than 15% shall be considered a stock split, and
the effective date shall be deemed to be the close of business on the
dividend record date.
(D) Whenever the conversion price is adjusted as herein
provided, the Corporation shall forthwith place on file with each
transfer agent of shares of Series 1 a statement signed by the
President or a Vice President of the Corporation and by its Treasurer
or an Assistant Treasurer
14
showing in detail the facts requiring such adjustment and the
conversion price after such adjustment and shall exhibit the same from
time to time to any holder of shares of Series 1 desiring an
inspection thereof. The Corporation shall also cause a notice,
stating that such adjustment has been effected and setting forth the
adjusted conversion price, to be published at least once in a
newspaper printed in the English language and customarily published at
least once a day for at least five days in each calendar week, which
shall be of general circulation in the Borough of Manhattan, the City
of New York (herein called an "Authorized Newspaper").
(E) In the case of the issuance of Additional Shares upon
conversion or exchange of other securities of the Corporation as
provided in paragraph (6) of subparagraph (B) above, the conversion
price shall be adjusted to reflect the issuance of such Additional
Shares only on the 15th day of each calendar month to reflect all such
conversions or exchanges through the preceding calendar month. Upon
the redemption of any shares of Series 1, the conversion price shall
be adjusted to reflect the issuance of such Additional Shares as of a
date not earlier than the close of business on the fifth business day
preceding the mailing of the notice of redemption.
(F) No adjustment of the conversion price shall be made if the
amount of such adjustment shall be less than 50 cents, but in such
case any adjustment that would otherwise be required then to be made
shall be carried forward and shall be made at the time of and together
with the next subsequent adjustment, which, together with all
adjustments so carried forward shall amount to not less than 50 cents.
In case the Corporation shall at any time split or combine the
outstanding shares of Common Stock, said amount of 50 cents (as
theretofore decreased or increased) shall forthwith be proportionately
decreased in the case of a split or increased in the case of a
combination, so as to appropriately reflect the same. For this
purpose, a stock dividend of more than 15% shall be considered a split
of the outstanding shares.
(f) In case of any reclassification or change of outstanding shares
of Common Stock (except a split or combination, or a change in par value,
or a change from par value to no par value, or a change from no par value
to par value), or in case of any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation is the
surviving corporation and which does not result in any reclassification or
change of the outstanding Common Stock of the Corporation except as stated
above), or in case of any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an entirety,
lawful provision shall be made as part of the terms of such
reclassification, change, consolidation, merger, sale or conveyance that
the holder of each share of Series 1 then outstanding shall have the right
to convert such share into the same kind and amount of stock and other
securities and property as would be receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the number
of shares of Common Stock into which such share might have been converted
immediately prior thereto.
As evidence of the kind and amount of stock or other securities or
property into which shares of Series 1 shall be convertible after any such
reclassification, change, consolidation, merger, sale or conveyance, or as
to the appropriate adjustments of the conversion price applicable with
respect thereto, the transfer agents may accept the certificate of any firm
of independent public accountants (who may be the regular auditors retained
by the Corporation) with respect thereto, who as to questions of law may
request and rely upon an opinion of counsel (who may be counsel for the
Corporation) and in the absence of bad faith upon the part of the transfer
agents, they may conclusively rely thereon, and shall not be responsible or
accountable to any holder of shares of Series 1 for any provision in
conformity therewith, or approved by such firm of independent public
accountants.
(g) The issue of stock certificates on conversions of shares of
Series 1 shall be without charge to the converting shareholder for any tax
in respect of the issue thereof. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares in any name other than that of
the holder of the shares of Series 1 converted, and the Corporation shall
not be required to issue or deliver any such stock certificate unless and
until the person or persons requesting the issue thereof shall have paid to
the Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid.
15
(h) The Corporation shall at all times reserve and keep available,
free from pre-emptive rights, out of its authorized and unissued stock or
out of shares held in its treasury, for the purpose of effecting the
conversion of shares of Series 1 such number of shares of its Common Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Series 1.
(i) In case at any time:
(1) the Corporation shall pay any dividend upon its Common Stock
payable in shares of its Common Stock and such dividend shall be in
excess of five per cent (5%); or
(2) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares
of any class or of any other rights;
then, in either of said cases, the Corporation shall give written notice,
by first class mail, postage prepaid, to each holder of record of shares of
Series 1 at his address then appearing on the books of the Corporation, of
the record date or of the date on which the transfer books of the
Corporation shall close with respect to such action. Such notice shall be
given at least twenty (20) days prior to the action in question and not
less than ten (10) days prior to the record date or the date on which the
Corporation's transfer books are closed with respect thereto.
(j) In case the Corporation shall pay in any quarter-annual period
any cash dividends upon its Common Stock which in total amount per share
will exceed by fifty per cent (50%) the total amount per share of the cash
dividends paid during the last preceding quarter-annual period, it shall
cause notice thereof to be published at least once in an Authorized
Newspaper.
DIVISION C-2
EXPRESS TERMS OF CUMULATIVE SERIAL PREFERENCE STOCK II,
$4.40 CONVERTIBLE SERIES 2
[No shares of this series have been issued. The provisions of this
Division C-2 were deleted by action of the Directors of the Corporation on
October 22, 1968.]
DIVISION C-3
EXPRESS TERMS OF CUMULATIVE SERIAL PREFERENCE STOCK II,
$4.50 CONVERTIBLE SERIES 3
There is hereby established a third series of Serial Preference Stock
II, to which the following provisions shall be applicable:
SECTION 1. DESIGNATION OF SERIES. The series shall be designated
"Cumulative Serial Preference Stock II, $4.50 Convertible Series 3" (herein
called "Series 3").
SECTION 2. NUMBER OF SHARES. The number of shares of Series 3 is
2,120,000, which number from time to time may be increased or decreased
(but not below the number of shares of the series then outstanding) by the
Directors.
SECTION 3. DIVIDEND RATE. The dividend rate for Series 3 is $4.50 per
share per annum.
SECTION 4. DIVIDEND PAYMENT DATES; CUMULATION DATES. The dates at
which dividends on Series 3 shall be payable are March 15, June 15,
September 15 and December 15 of each year, but the first dividend payment
date on shares of Series 3 shall be the first payment date occurring at
least 10 days after the date of the initial issue of shares of Series 3.
Dividends on shares of Series 3 shall be cumulative as follows:
(a) in the case of the initial issue of shares of Series 3 dividends
shall be cumulative from the date of such initial issue;
16
(b) in the case of shares of Series 3 issued during the period
commencing immediately after such initial issuance date and terminating
immediately after the record date for the first dividend on shares of
Series 3, dividends shall be cumulative from such initial issuance date;
and
(c) in all other cases, dividends shall be cumulative from the
dividend payment date next preceding the date of issue of such shares
unless the shares are issued during the period commencing immediately after
the record date for a dividend on shares of such series and terminating at
the close of the payment date for such dividend in which case dividends
shall be cumulative from the latter payment date.
SECTION 5. REDEMPTION PRICES. The shares of Series 3 shall not be
redeemable by the Corporation prior to January 1, 1976. Thereafter the
redemption prices for shares of Series 3 shall be as follows:
IF THE REDEMPTION DATE IF THE REDEMPTION DATE
IS DURING 12-MONTH IS DURING 12-MONTH
PERIOD BEGINNING REDEMPTION PERIOD BEGINNING REDEMPTION
JANUARY 1 PRICE JANUARY 1 PRICE
--------- ----- --------- -----
1976 $105.00 1982 $102.00
1977 104.50 1983 101.50
1978 104.00 1984 101.00
1979 103.50 1985 100.50
1980 103.00 1986 and thereafter 100.00
1981 102.50
SECTION 6. LIQUIDATION RIGHTS. The amount payable on shares of Series
3 in the event of any voluntary liquidation, dissolution or winding up of
the affairs of the Corporation prior to January 1, 1976 shall be $105 per
share and thereafter shall be an amount equal to the redemption price for
shares of Series 3 in effect on the distribution date, and in the event of
any involuntary liquidation, dissolution or winding up of the Corporation
shall be $40 per share.
SECTION 7. CONVERSION RIGHT.
(a) Subject to and upon compliance with the provisions of this Section
7, shares of Series 3 may, at the option of the holder at any time (or, in
the case of shares called for redemption, then until and including the
close of business on the date fixed for redemption but not thereafter if
payment of the redemption price has been duly provided for by the date
fixed for redemption), be converted into fully paid and non-assessable
shares (calculated to the nearest 1/100th of a share) of Common Stock at
the rate of 1.862 shares of Common Stock for each share of Series 3.
(b) The holder of each share of Series 3 may exercise the conversion
privilege in respect thereof by delivering to any transfer agent of Series
3 the share to be converted accompanied by written notice that the holder
elects to convert such share. Conversion shall be deemed to have been
effected immediately prior to the close of business on the date when such
delivery is made, and such date is referred to in this Section 7 as the
"conversion date". On the conversion date or as promptly thereafter as
practicable the Corporation shall issue and deliver to the holder of shares
of Series 3 surrendered for conversion, or on his written order, a
certificate for the number of full shares of Common Stock issuable upon the
conversion of such shares of Series 3 and a check or cash in respect of any
fraction of a share as provided in subparagraph (E) of this Section 7. The
person in whose name the stock certificate is to be issued shall be deemed
to have become a holder of Common Stock of record on the conversion date.
No adjustment shall be made for any dividends on such shares of Series 3 or
for dividends on the shares of Common Stock issued on conversion.
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(c) The number of shares of Common Stock and the number of shares of
other classes of stock of the Corporation, if any, into which each share of
Series 3 is convertible shall be subject to adjustment from time to time
only as follows:
(A) In case the Corporation shall at any time or times after
June 10, 1968 (1) take a record of the holders of Common Stock for the
purpose of entitling them to receive a dividend declared payable in
shares of Common Stock and thereafter pay such dividend, (2) subdivide
or split the outstanding shares of Common Stock, (3) combine the
outstanding shares of Common Stock into a smaller number of shares or
(4) issue by reclassification of Common Stock any shares of the
Corporation, each holder of a share of Series 3 shall thereafter be
entitled upon the conversion of each share thereof held by him to
receive for each such share the number of shares of the Corporation
which he would have owned or have been entitled to receive in respect
thereof after the happening of the event or events described above
which shall have happened had such share of Series 3 been converted
prior to the happening of such event or events, the adjustment to
become effective immediately at the opening of business on the day
next following (x) the record date for purposes of clause (1), or (y)
the day upon which such subdivision, split, combination or
reclassification shall become effective for purposes of clauses (2),
(3) and (4).
(B) In case the Corporation shall at any time or times after
June 10, 1968 take a record of the holders of Common Stock for the
purpose of entitling them to receive a distribution of evidences of
indebtedness or stock or other securities or assets (excluding cash
dividends payable out of consolidated earnings or consolidated earned
surplus and distributions of the types specified in clauses (1), (2)
and (4) of subparagraph (A) of this Section 7) or rights or warrants
to subscribe thereto (excluding those referred to in subparagraph (C)
of this Section 7), the number of shares of Common Stock into which
each share of Series 3 shall thereafter be convertible shall be
adjusted by multiplying the number of shares of Common Stock into
which such share of Series 3 was theretofore convertible by a
fraction, of which the numerator shall be the current market price per
share of Common Stock (as defined in subparagraph (D) of this Section
7) at such record date and of which the denominator shall be such
current market price per share of Common Stock less the fair market
value (as determined by the Directors, whose determination shall be
conclusive) of that portion of such evidences of indebtedness or stock
or other securities or assets so distributed or of such subscription
rights or warrants applicable to one share of Common Stock. Such
adjustment shall be made whenever such distribution is made or such
rights or warrants are issued, as the case may be, and upon such
distribution or issuance shall become effective immediately after the
record date for the determination of shareholders entitled to receive
such distribution or rights or warrants. For purposes of this
subparagraph (B), consolidated earnings or consolidated earned surplus
shall be computed by adding thereto all charges against consolidated
earned surplus on account of dividends paid in shares of Common Stock
in respect of which an adjustment has been made pursuant to
subparagraph (A) of this Section 7, all as determined by the
independent public accountants then regularly auditing the accounts of
the Corporation, whose determination shall be conclusive.
(C) In case the Corporation shall at any time after June 10,
1968 issue rights or warrants to all holders of Common Stock entitling
them (for a period expiring within 60 days after the record date for
determination of shareholders entitled to receive such rights or
warrants) to subscribe for or purchase shares of Common Stock at a
price per share less than the current market price per share of Common
Stock (as defined in subparagraph (D) of this Section 7) at such
record date, the number of shares of Common Stock into which each
share of Series 3 shall thereafter be convertible shall be determined
by multiplying the number of shares of Common Stock into which such
shares of Series 3 were theretofore convertible by a fraction, of
which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus
the number of additional shares of Common Stock offered for
subscription or purchase and of which the denominator shall be the
number of shares of Common Stock outstanding on the date of issuance
of such rights or warrants plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares so
offered would purchase at such current market price. Such adjustment
shall be made whenever such rights or warrants are issued and upon
such issuance shall
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become effective immediately after the record date for the
determination of shareholders entitled to receive such rights or
warrants.
(D) For the purpose of any computation under subparagraph (B) or
(C) of this Section 7, the current market price per share of Common
Stock at any date shall be deemed to be the average of the daily
closing prices for the thirty consecutive business days commencing
forty-five business days before the day in question. The closing
price for each day shall be the last reported sales price regular way
on the relevant securities exchange or, if there is no reported sale
on such day, the mean of the reported closing bid and asked quotations
on the relevant securities exchange on the day, or, with respect to
any such day when the Common Stock is not listed on any national
securities exchange, the mean of the closing bid and asked quotations
in the over-the-counter market on such day as reported by the National
Quotation Bureau or similar reporting service. For purposes of this
subparagraph (D) and subparagraph (E) of this Section 7, "relevant
securities exchange" shall mean the New York Stock Exchange unless the
Common Stock is not then listed thereon, in which event it shall mean
the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading as determined by the
Corporation, which determination shall be conclusive.
(E) The Corporation shall not be required to issue fractional
shares of Common Stock upon conversion of shares of Series 3. If more
than one share of Series 3 shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares so surrendered. If any fractional interest
in a share of Common Stock would be deliverable upon the conversion of
any shares of Series 3, the Corporation shall in lieu of delivering
the fractional share therefor make an adjustment therefor in cash at
the market value thereof. For such purpose, the market value of a
share of Common Stock shall be the last reported sale price regular
way on the relevant securities exchange on the last business day prior
to the conversion date when the relevant securities exchange is open,
or, if there is no reported sale on such day, the mean of the reported
closing bid and asked quotations on the relevant securities exchange
on that day, or, if the Common Stock is not then listed on any
national securities exchange, the mean of the closing bid and asked
quotations in the over-the-counter market on that day as reported by
the National Quotation Bureau or similar reporting service. This
subparagraph (E) shall not apply for purposes of making adjustments
under subparagraphs (A), (B) and (C) of this Section 7.
(F) No adjustment in the number of shares of Common Stock into
which each share of Series 3 is convertible shall be required unless
such adjustment would require an increase or decrease of at least
1/1000th of a share in the number of shares of Common Stock into which
such share is then convertible; provided, however, that any
adjustments which by reason of this subparagraph (F) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment.
(G) Whenever any adjustment is required in the shares into which
each share of Series 3 is convertible, the Corporation shall forthwith
keep available at each of its transfer agencies at which Series 3 is
convertible a statement describing in reasonable detail the adjustment
and the method of calculation used. The Corporation shall also cause
a notice, stating that such adjustment has been effected and setting
forth the adjusted conversion price, to be published at least once in
a newspaper printed in the English language and customarily published
at least once a day for at least five days in each calendar week which
shall be of general circulation in the Borough of Manhattan, the City
of New York (herein called an "Authorized Newspaper").
(H) As evidence of the kind and amount of stock or other
securities, cash or property into which shares of Series 3 shall be
convertible, or as to the appropriate adjustments of the conversion
rate applicable with respect thereto, each transfer agent of Series 3
may accept the certificate of any firm of independent public
accountants (who may be the regular auditors retained by the
Corporation) with respect thereto, who as to questions of law may
request and rely upon an opinion of counsel (who may be counsel for
the Corporation) and in the absence of bad faith upon the part
19
of the transfer agent, it may conclusively rely thereon, and shall not
be responsible or accountable to any holder of shares of Series 3 for
any provision in conformity therewith, or approved by such firm of
independent public accountants.
(d) The Corporation shall at all times reserve and keep available out
of the authorized but unissued shares of Common Stock the full number of
shares of Common Stock into which all shares of Series 3 from time to time
outstanding are convertible, but shares of Common Stock held in the
treasury of the Corporation may in its discretion be delivered upon any
conversion of shares of Series 3.
(e) The issue of stock certificates on conversions of shares of
Series 3 shall be without charge to the converting shareholder for any tax
in respect of the issue thereof. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares in any name other than that of
the holder of the shares of Series 3 converted, and the Corporation shall
not be required to issue or deliver any such stock certificate unless and
until the person or persons requesting the issue thereof shall have paid to
the Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid.
(f) In case the total amount of cash dividends paid by the
Corporation in any quarter-annual period on the number of shares of Common
Stock into which each share of Series 3 shall be convertible at the time of
such payment exceeds $1.125, it shall cause notice thereof to be published
at least once in an Authorized Newspaper.
DIVISION C-4
EXPRESS TERMS OF CUMULATIVE
REDEEMABLE SERIAL PREFERENCE STOCK II, SERIES 4
There is hereby established a fourth series of Serial Preference Stock II
to which the following provisions shall be applicable:
SECTION 1. DESIGNATION OF SERIES. The series shall be designated
"Cumulative Redeemable Serial Preference Stock II, Series 4" (herein called
"Series 4").
SECTION 2. NUMBER OF SHARES. The number of shares of Series 4 is
1,145,000, which number from time to time may be increased or decreased
(but not below the number of shares of the series then outstanding) by the
Directors.
SECTION 3. DIVIDENDS.
(a) The holders of record of shares of Series 4 shall be entitled to
receive, when and as declared by the Directors in accordance with the terms
hereof, out of funds legally available for the purpose, cumulative
quarterly dividends payable in cash on the first day of January, April,
July and October in each year (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 any shares of Series 4 or
any fraction of a share of Series 4, in an amount per share (rounded to the
nearest cent) equal to the lesser of (i) $100.00 and (ii) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) 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 shares of Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any shares of
Series 4 or any fraction of a share of Series 4. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series 4
were entitled immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
20
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
shares of Series 4 from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series 4, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series 4 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. No dividends shall be paid upon or
declared and set apart for any shares of Series 4 for any dividend period
unless at the same time a dividend for the same dividend period, ratably in
proportion to the respective annual dividend rates fixed therefor, shall be
paid upon or declared and set apart for all Serial Preference Stock II of
all series then outstanding and entitled to receive such dividend. The
Directors of the Corporation may fix a record date for the determination of
holders of shares of Series 4 entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 40
days prior to the date fixed for the payment thereof.
SECTION 4. REDEMPTION RIGHTS. Subject to the provisions of Section
6(b)(iii) of Division C of Article Fourth hereof and in accordance with the
provisions of Section 4 of Division C of Article Fourth hereof, the shares
of Series 4 shall be redeemable from time to time at the option of the
Directors of the Corporation, as a whole or in part, at any time, at a
redemption price per share equal to 100 times the then applicable Purchase
Price as defined in that certain rights agreement, dated as of April 24,
1996 between the Corporation and its rights agent (the "Rights Agreement"),
as the same may be amended from time to time in accordance with its terms,
subject to adjustment from time to time as provided in the Rights
Agreement. Copies of the Rights Agreement are available from the
Corporation upon request. In the event less than all of the outstanding
shares of Series 4 are to be redeemed, the Corporation shall select by lot
the shares so to be redeemed in such manner as shall be prescribed by the
Directors of the Corporation.
SECTION 5. LIQUIDATION RIGHTS.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation (hereinafter
referred to as a "Liquidation"), no distribution shall be made to the
holders of shares of stock ranking junior (either as to dividends or upon
Liquidation) to the shares of Series 4, unless, prior thereto, the holders
of shares of Series 4 shall have received at least an amount per share
equal to 100 times the then applicable Purchase Price as defined in the
Rights Agreement, as the same may be amended from time to time in
accordance with its terms, subject to adjustment from time to time as
provided in the Rights Agreement, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not earned or
declared, to the date of such payment, provided that the holders of shares
of Series 4 shall be entitled to receive at least an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal
to 100 times the aggregate amount to be distributed per share to holders of
shares of Common Stock (the "Series 4 Liquidation Preference").
(b) In the event, however, that the net assets of the Corporation are
not sufficient to pay in full the amount of the Series 4 Liquidation
Preference and the liquidation preferences of all other series of Serial
Preference Stock II, if any, which rank on a parity with the shares of
Series 4 as to distribution of assets in Liquidation, all shares of Series
4 and of such other series of Serial Preference Stock II shall share
ratably in the distribution of assets (or proceeds thereof) in Liquidation
in proportion to the full amounts to which they are respectively entitled.
(c) In the event the Corporation shall at any time declare or pay any
dividend on the shares of Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common
21
Stock, then in each such case the amount to which holders of shares of
Series 4 were entitled immediately prior to such event pursuant to the
proviso set forth in paragraph (a) above, 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.
(d) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the
sale, lease or conveyance of all or substantially all of the property or
business of the Corporation, shall not be deemed to be a Liquidation for
the purposes of this Section 5.
SECTION 6. CONVERSION RIGHT. The shares of Series 4 shall not be
convertible into shares of Common Stock.
DIVISION D
EXPRESS TERMS OF COMMON STOCK
The Common Stock shall be subject to the express terms of the Serial
Preference Stock and any series thereof and to the express terms of the
Serial Preference Stock II and any series thereof. Each share of Common
Stock shall be equal to every other share of Common Stock; and the holders
thereof shall be entitled to one vote for each share of such stock on all
questions presented to the shareholders.
The holders of shares of Common Stock shall have no pre-emptive right
to purchase or have offered to them for purchase any shares of Common Stock
or other securities of the Corporation whether now or hereafter authorized.
Fifth: The Corporation may from time to time, pursuant to authorization by
its Board of Directors and without action by the shareholders, purchase or
otherwise acquire shares of the Corporation of any class; subject, however, to
such limitation or restriction, if any, as is contained in the express terms of
any class of shares of the Corporation outstanding at the time of such purchase
or acquisition.
Sixth: Any and every statute of Ohio hereafter enacted whereby the rights,
powers or privileges of corporations or of the shareholders of corporations
organized under the laws of Ohio are increased or diminished or in any way
affected, or whereby effect is given to the action taken by any number, less
than all, of the shareholders of any such corporation, shall apply to the
Corporation and shall be binding not only upon the Corporation but upon every
shareholder of the Corporation to the same extent as if such statute had been in
force on October 31, 1958, the time of merger of The Ramo-Wooldridge Corporation
into the Corporation.
Seventh: These Amended Articles of Incorporation shall supersede and take
the place of the heretofore existing Articles of Incorporation of the
Corporation and all amendments thereto.
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