EXHIBIT 3.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DYNACRAFT GOLF PRODUCTS, INC.
FIRST: The name of the corporation shall be Dynacraft Golf Products,
Inc.
SECOND: The place in Ohio where the principal office of the corporation
is to be located is in the City of Newark, County of Licking.
THIRD: The purpose for which the corporation is formed is to engage in
any lawful act or activity for which corporations may be formed under Sections
1701.01 to 1701.98 of the Ohio Revised Code.
FOURTH:
4.1. AUTHORIZED SHARES.
The maximum number of shares of all classes which the corporation is
authorized to have outstanding is 3,500,100, consisting of 3,500,000 Common
Shares (the "Common Shares") with no par value and 100 Preferred Shares (the
"Preferred Shares") with par value of $1,000.00 each.
4.2 PREFERRED SHARES, PAR VALUE $1,000.00 PER SHARE.
The terms of the Preferred Shares, par value $1,000.00 per share, shall be
as follows:
The holders of the then outstanding Preferred Shares shall be entitled to
receive cash dividends if, as, and when declared by the board of directors out
of any funds legally available therefor. Dividends shall not be cumulative. As
long as any Preferred Shares are outstanding, no dividends shall be paid with
respect to the Common Shares during any fiscal year of the corporation at a rate
greater than the "applicable rate" at which dividends are paid on the Preferred
Shares, and dividends on the Preferred Shares shall be paid before dividends are
paid on the Common Shares. For purposes of this Article FOURTH, the "applicable
rate" is defined as the rate at which the holder of 100 Preferred Shares will be
entitled to receive the same dividend to which a holder of 26 Common Shares, as
constituted on December 11, 1990, would be entitled. The calculation of such
"applicable rate" shall take into account any stock split or stock dividend
declared on the Common Shares after December 11, 1990. This paragraph applies
only to cash dividends, and the Preferred Shares shall not participate in any
other type of dividend, distribution or exchange involving the Common Shares.
Upon dissolution, liquidation, or winding up of the corporation, whether
voluntary or involuntary, the holders of the Preferred Shares shall be entitled
to receive in cash, out of any assets of the corporation, whether surplus assets
or otherwise, before any payment shall be made to the holders of Common Shares,
the sum of $1,000.00 per share, together with all accrued and unpaid dividends
thereon to the day of payment. After the payment of the entire preferential
amounts provided for in the
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preceding sentence, the holders of the Preferred Shares shall not be entitled
to any further participation in any distribution of the assets or funds of
the corporation upon any dissolution, liquidation, or winding up of the
corporation, and the remaining assets and funds of the corporation shall be
divided and distributed among the holders of the Common Shares then
outstanding, according to their respective interests.
Upon any consolidation or merger of the corporation with any other
corporation or corporations, or upon the sale of all or substantially all of the
assets of the corporation, any preferred shareholder who does not expressly
consent thereto shall be entitled to require the corporation to redeem his
Preferred Share or Shares and to receive therefor in cash, out of the assets of
the corporation, whether surplus assets or otherwise, before such consolidation
or merger or such sale shall be consummated, the sum of $1,000.00 per share,
together with all declared and unpaid dividends thereon to the date of payment.
The corporation may, at the option of the board of directors, at any time,
redeem the whole of the Preferred Shares or, from time to time, any part of the
Preferred Shares, by paying to the holder or holders of record $1,000.00 per
share, plus all declared and unpaid dividends thereon to the date of redemption.
If fewer than all of the Preferred Shares are to be redeemed, the shares to be
redeemed shall be selected by such method as the board of directors in its
discretion shall determine, without regard to the limitations of Section 1701.23
of the Ohio Revised Code, or any statute of like tenor or effect which may
hereafter be enacted. Notice of the intention of
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the corporation to redeem Preferred Shares and of the date, price, and place
of redemption shall be mailed by first class mail, postage prepaid, not less
than fifteen nor more than sixty days before the date fixed for redemption to
each holder of record of the shares to be redeemed at his last known post
office address as shown by the records of the corporation. If such notice of
redemption shall have been duly given and, if on or before the redemption
date so fixed all funds necessary for such redemption shall have been
deposited or otherwise set apart so as to be available therefor, then on such
date, and regardless of whether or not any certificates for Preferred Shares
so called for redemption shall have been presented for cancellation, all such
shares shall cease to be outstanding, and all rights of the holders with
respect to them shall cease and terminate, except only the right to receive
the amount payable upon redemption, but without interest. Monies deposited
or set apart for the purpose of redemption which shall remain unclaimed at
the end of six years from the date of deposit or setting apart, shall belong
to the corporation, free from any claim of the holders of the Preferred
Shares which have been called for redemption.
If no dividends on the Preferred Shares are paid for a period of more than
two years, the holders of the Preferred Shares shall thereupon become entitled
to redeem the whole of the Preferred Shares or, from time to time, any part of
the Preferred Shares, by notifying the corporation in writing of the intention
to redeem and delivering to the corporation the duly endorsed stock certificate
representing the shares to be redeemed. The corporation shall pay any redeeming
holder of Preferred Shares
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$1,000.00 per share, plus all declared and unpaid dividends thereon to the
date of redemption.
Except as may otherwise be required by the laws of the State of Ohio, all
voting power of the corporation for all purposes is vested exclusively in the
holders of the Common Shares, and the holders of the Preferred Shares shall
not be entitled to vote thereon at meetings of the shareholders of the
corporation, nor to receive notices of such meetings. The holders of Common
Shares shall be entitled to one vote for each Common Share held.
FIFTH: The directors of the corporation shall have the power to cause
the corporation from time to time and at any time to purchase, hold, sell,
transfer or otherwise deal with (A) shares of any class or series issued by
it, (B) any security or other obligation of the corporation which may confer
upon the holder thereof the right to convert the same into shares of any
class or series authorized by the Articles, and (C) any security or other
obligation which may confer upon the holder thereof the right to purchase
shares of any class or series authorized by the Articles. The corporation
shall have the right to repurchase, if and when any shareholder desires to
sell, or on the happening of any event is required to sell, shares of any
class or series issued by the corporation. The authority granted in this
Article FIFTH of these Articles shall not limit the plenary authority of the
directors to purchase, hold, sell, transfer or otherwise deal with shares of
any class or series, securities, or other obligations issued by the
corporation or authorized by these Articles.
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SIXTH: No shareholder of the corporation shall have, as a matter of
right, the pre-emptive right to purchase or subscribe for shares of any class,
now or hereafter authorized, or to purchase or subscribe for securities or other
obligations convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for or purchase
any such share.
SEVENTH: Notwithstanding any provision of the Ohio Revised Code requiring
for any purpose the vote, consent, waiver or release of the holders of shares of
the corporation entitling them to exercise two-thirds or any other proportion of
the voting power of the corporation or of any class or classes of shares
thereof, such action, unless expressly provided otherwise by statute or by the
regulations of the corporation, may be taken by the vote, consent, waiver or
release of the holders of shares entitling them to exercise not less than a
majority of the voting power of the corporation or of such class or classes.
EIGHTH: Shareholders of the corporation shall not have the right to vote
cumulatively in the election of directors.
NINTH: Chapter 1704 of the Ohio Revised Code shall not apply to the
corporation.
TENTH: Section 1701.831 of the Ohio Revised Code shall not apply to control
share acquisitions of shares of the corporation.
ELEVENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in these Articles in the manner now or hereafter
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prescribed by law and all rights conferred upon officers, directors and
shareholders herein are granted subject to this reservation.
TWELFTH: These Articles take the place of and supersede the existing
Amended and Restated Articles of Incorporation of Dynacraft Golf Products, Inc.
in their entirety.
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