EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
LABONE, INC.,
(FORMERLY LAB HOLDINGS, INC.)
AS AMENDED IN THEIR ENTIRETY
ARTICLE I
The name of the Corporation is: LabONE, Inc.
ARTICLE II
The address, including street and number, of the Corporation's initial
registered office in this state and the name of its initial agent is
CT Corporation System located at 120 S. Central Avenue, Clayton, Missouri
63105. The principal office of the Corporation shall be located in Kansas City,
Missouri.
ARTICLE III
The aggregate number of shares of capital stock which the Corporation is
authorized to issue is 43,000,000 divided into the following classes
3,000,000 shares of Preferred Stock of the par value of $0.01 per share,
which is hereinafter referred to as "Preferred Stock," and
40,000,000 shares of Common Stock of the par value of $0.01 per share,
which is hereinafter referred to as "Common Stock."
The designations, preferences and relative, participating, optional or
other special rights of each class of stock and the qualifications,
limitations or restrictions of such preferences and/or rights are, or shall
be determined, as follows:
A. Provisions Applicable to Preferred Stock.
1. Issuance of Shares.
(a) Shares of Preferred Stock may be issued from time to time in
one or more series as provided herein. Each such series shall be designated
so as to distinguish the shares thereof from the shares of all other series,
and shall have such voting powers, full, special
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or limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the Articles of Incorporation or any amendment thereto or in the
resolution or resolutions providing for the issue of such stock adopted by
the Board of Directors pursuant to authority expressly vested in it by the
provisions of these Articles of Incorporation. The shares of Preferred Stock
of all series shall be of equal rank, and all shares of any particular series
of Preferred Stock shall be identical, except that, if the dividends thereon
are cumulative, the date or dates from which they shall be cumulative may
differ. The terms of any series of Preferred Stock may vary from the terms
of any other series of Preferred Stock to the full extent now or hereafter
permitted by Missouri law, and the terms of each series shall be fixed, prior
to the issuance thereof, in the manner provided in subparagraph (b) of this
Paragraph 1. Without limiting the generality of the foregoing, shares of
Preferred Stock of different series may, subject to any applicable provisions
of law, vary with respect to the following terms:
(1) The distinctive designation of such series and the
number or shares of such series;
(2) The rate or rates at which shares of such series shall
be entitled to receive dividends, the conditions upon, and the times of
payment of, such dividends, the relationship and preference, if any, of such
dividends to dividends payable on any other class or classes or any other
series of stock, and whether such dividends shall be cumulative or
noncumulative, and, if cumulative, the date or dates from which such
dividends shall be cumulative;
(3) The right, if any, to exchange or convert the shares
of such series into shares of any other class or classes, or of any other
series of the same or any other class or classes of stock of the Corporation,
and if so convertible or exchangeable, the conversion price or prices, or the
rates of exchange, and the adjustments, if any, at which such conversion or
exchange may be made;
(4) If shares of such series are subject to redemption,
the time or times and the price or prices at which, at the terms and
conditions on which, such shares shall be redeemable;
(5) The preference of the shares of such series as to both
dividends and assets in the event of any voluntary or involuntary liquidation
or dissolution or winding up or distribution of assets of the Corporation;
(6) The obligation, if any, of the Corporation to
purchase, redeem or retire shares of such series and/or maintain a fund for
such purposes, and the amount or amounts to be payable from time to time for
such purpose or into such fund, the number of shares to be purchased,
redeemed or retired, and the other terms and conditions of any such
obligation;
(7) The voting rights, if any, full, special or limited,
to be given the shares of such series, including without limiting the
generality of the foregoing, the right, if any,
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as a series or in conjunction with other series or classes, to elect one or
more members of the Board of Directors either generally or at certain
specified times or under certain circumstances, and restrictions, if any, on
particular corporate acts without a specified vote or consent of holders of
such shares (such as, among others, restrictions on modifying the terms of
such series of Preferred Stock, authorizing or issuing additional shares of
Preferred Stock or creating any additional shares of Preferred Stock or
creating any class of stock ranking prior to or on a parity with the
Preferred Stock as to dividends or assets); and
(8) Any other preferences, and relative, participating,
optional, or other special rights, and qualifications, limitations or
restrictions thereof.
(b) Authority is hereby expressly granted to and vested in the
Board of Directors at any time or from time to time to issue the Preferred
Stock as Preferred Stock of any series, and in connection with the creation
of each such series, so far as not inconsistent with the provisions of this
Article III applicable to all series of Preferred Stock, to fix, prior to the
issuance thereof, by resolution or resolutions providing for the issue of
shares thereof, the authorized number of shares of such series, which number
may be increased, unless otherwise provided by the Board of Directors in
creating such series, or decreased, but not below the number of shares
thereof then outstanding, from time to time by like action of the Board of
Directors, the voting powers of such series and the designations, rights,
preferences, and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, of such series.
B. Provisions Applicable to Common Stock.
1. Dividends. Subject to the provisions of law and the rights of
the Preferred Stock and any other class or series of stock having a
preference as to dividends over the Common Stock then outstanding, the
holders of Common Stock shall be entitled to receive dividends at such times
and in such amounts as the Board of Directors shall determine.
2. Liquidation Rights. In the event of any voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, the
holders of Common Stock, after payment in full to the holders of Preferred
Stock, or after provision for such payment shall have been made, all in
accordance with the terms governing such Preferred Stock, shall be entitled
to payment and distribution of the assets of the Corporation ratably in
accordance with the number of shares held by them respectively.
C. General Provisions.
1. Voting Rights. Except as may be provided pursuant to
Paragraph 1 of Section A. of this Article III, the holders of the outstanding
stock, regardless of class, shall be entitled to one vote for each share held
on each matter submitted to a vote at a meeting of shareholders.
2. Preemptive Rights. No holder of any of the shares of any class
or series of stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe
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for any unissued stock of any class or series or any additional shares of any
class or series to be issued by reason of any increase in the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities convertible into
or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue or shares of any class or series
of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may
be deemed advisable by the Board of Directors in the exercise of its sole
discretion.
3. Relative Powers of Preferred Stock Series. The relative powers,
preferences and rights of each series of Preferred Stock in relation to the
powers, preferences and rights of each other series of Preferred Stock shall,
in each case, be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
subparagraph (b) of Paragraph 1, Section A. of this Article III, and the
consent, by class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding series,
or any of them; provided, however, that the Board of Directors may provide in
the resolution or resolutions as to any series of Preferred Stock adopted
pursuant to subparagraph (b) of paragraph 1 of Section A. of this Article III
that the consent of the holders of a majority (or such greater proportion as
shall be therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other series of
Preferred Stock.
4. Issuance of Preferred Shares. Subject to the provisions of
Paragraph 3 of this Section C., shares of any series of Preferred Stock may
be issued from time to time as the Board of Directors of the Corporation
shall determine, and on such terms and for such consideration as shall be
fixed by the Board of Directors.
ARTICLE IV
The name and place of residence of each incorporator is as follows:
W.R. Mullens 9304 Buena Vista Prairie Village, Kansas
V.W. Voorhees, II 3816 W. 58th St. Fairway, Kansas
Robert L. Meeker 12601 Pawnee Lane Leawood, Kansas
ARTICLE V
The number of directors to constitute the present Board of Directors of
the Corporation is fifteen. Hereafter, the number of directors of the
Corporation shall be fixed by, or in the manner provided in, and elected in
the manner provided in, the Bylaws of the Corporation, the applicable
provisions of which shall be consistent with those provisions of The General
and Business
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Corporation Law of Missouri relating to election of directors. Vacancies in
the Board of Directors shall be filled in the manner provided in the Bylaws.
Directors need not be shareholders unless the Bylaws of the Corporation
require them to be shareholders.
ARTICLE VI
The duration of the Corporation is perpetual.
ARTICLE VII
The Corporation is formed for the following purposes:
A. To buy, lease, rent or otherwise acquire, own, hold, use, divide,
partition, develop, improve, operate and sell, lease, mortgage or otherwise
dispose of, deal in and turn to account, real estate, leaseholds, and any and
all interests or estates therein or appertaining thereto; and to construct,
acquire, manage, operate, improve, maintain, own, sell, lease or otherwise
dispose of or deal in buildings, structures and improvements situated or to
be situated on any real estate or leasehold, and to enter into joint venture,
partnership or any other type business relationships with other individuals,
firms, partnerships and corporations to acquire, lease, rent and develop real
estate.
B. To purchase, acquire, own, hold, pledge, sell, exchange and dispose
of any stock, bonds and other securities and evidences of indebtedness of any
corporation, association or other entity or enterprise, either domestic or
foreign, without limit as to the nature or type of business activity thereof,
and while owner of any thereof, to exercise all of the rights, powers, and
privileges of ownership.
C. To enter into any lawful contract or contracts with persons, firms,
corporations, other entities, governments or any agencies or subdivisions
thereof, including guaranteeing the performance of any contract or any
obligation of any person, firm, corporation or other entity.
D. To purchase and acquire, as a going concern or otherwise, and to
carry on, maintain and operate all or any part of the property or business of
any corporation, firm, association, entity, syndicate or person whatsoever,
deemed to be of benefit to the Corporation, or of use in any manner in
connection with any of its purposes; and to dispose thereof upon such terms
as may be advisable to the Corporation.
E. To purchase or otherwise acquire, hold, sell pledge, reissue,
transfer or otherwise deal in, shares of the Corporation's own stock,
provided that it shall not use its funds or property for the purchase of its
own shares of stock when such use would be prohibited by law, by the Articles
of Incorporation or by the Bylaws of the Corporation; and provided, further,
that shares of its own stock belonging to it shall not be voted upon directly
or indirectly.
F. To invest, lend and deal with monies of the Corporation in any lawful
manner, and to acquire by purchase, by the exchange of stock or other
securities of the Corporation, by
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subscription or otherwise, and to invest in, to hold for investment or for
any other purpose, and to use, sell, pledge or otherwise dispose of, and in
general to deal in any interest concerning or enter into any transaction with
respect to (including "long" and "short" sales of) any stocks, bonds, notes,
debentures, certificates, receipts and other securities and obligations of
any government, state, municipality, corporation, association or other
entity, including individuals and partnerships and, while owner thereof, to
exercise all of the rights, powers and privileges of ownership, including,
among other things, the right to vote thereon for any and all purposes, and
to give consents with respect thereto.
G. To borrow or raise money for any purpose of the Corporation and to
secure any loan, indebtedness or obligation of the Corporation, and the
interest accruing thereon, and for that or any other purpose, to mortgage,
pledge, hypothecate or charge all or any part of the present or hereafter
acquired property, rights and franchises of the Corporation, real, personal,
mixed or of any character whatever, subject only to limitations specifically
imposed by law.
H. To do any or all of the things hereinabove enumerated alone for its own
account, or for the account of others, or as the agent for others, or in
association with others or by or through others, and to enter into all
lawful contracts and undertakings in respect thereof.
I. To have one or more offices, to conduct its business, carry on its
operations and promote its objects within and without the state of
Missouri, in other states, the District of Columbia, the territories,
colonies and dependencies of the United States, in foreign countries and
anywhere in the world, without restriction as to place, manner or amount,
but subject to the laws applicable thereto; and to do any or all of the
things herein set forth to the same extent as a natural person might or
could do and in any part of the world, either alone or in company with
others.
J. In general, to carry on any other business in connection with each
and all of the foregoing or incidental thereto, and to carry on, transact and
engage in any and every lawful business or other lawful thing calculated to
be of gain, profit or benefit to the Corporation as fully and freely as a
natural person might do, to the extent and in the manner, and anywhere within
and without the state of Missouri, as it may from time to time determine; and
to have and exercise each and all of the powers and privileges, either direct
or incidental, which are given and provided by or are available under the
laws of the state of Missouri in respect of general and business corporations
organized for profit thereunder, provided, however, that the Corporation
shall not engage in any activity for which a corporation may not be formed
under the laws of the state of Missouri.
K. To advise and counsel others, and to act for and on behalf of others
concerning the acquisition, organization, promotion, development financing,
operation, management, disposition and termination of corporations,
associations, partnerships, firms and investments of all kinds, and to
perform any and all services relating to the foregoing and otherwise, and to
enter into and perform contracts, agreements and undertakings in connection
therewith.
None of the purposes and powers specified in any of the paragraphs of
this Article VII shall be in any way limited or restricted by reference to or
inference from the terms of any other
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paragraph, and the purposes and powers specified in each of the paragraphs of
this Article VII shall be regarded as independent purposes and powers. The
enumeration of specific purposes and powers in this Article VII shall not be
construed to restrict in any manner the general purposes and powers of this
Corporation, nor shall the expression of one thing be deemed to exclude
another, although it be of like nature. The enumeration of purposes or
powers herein shall not be deemed to exclude or in any way limit by inference
any purposes or powers which this Corporation has power to exercise, whether
expressly by laws of the state of Missouri, now or hereafter in effect, or
impliedly by any reasonable construction of such laws.
ARTICLE VIII
A. Except as may be otherwise specifically provided by statute, or the
Articles of Incorporation or the Bylaws of the Corporation, as from time to
time amended, all powers of management, direction and control of the
Corporation shall be, and hereby are, vested in the Board of Directors, and
shall be exercised by them and by such officers and agents as they may from
time to time appoint and empower. The Board shall have the power to make
such Bylaws, rules and regulations for the transaction of the business of the
Corporation as are not inconsistent with these Articles or the laws of the
state of Missouri.
B. Subject always to the provisions of Article XI of these Articles of
Incorporation, the Bylaws of the Corporation may from time to time be
altered, amended, suspended or repealed, or new Bylaws may be adopted, in
either of the following ways: (i) by the affirmative vote, at any annual or
special meeting of the shareholders, of the holders of a majority of the
outstanding shares of stock of the Corporation entitled to vote generally in
the election of directors, or (ii) by resolution adopted by a majority of the
full Board of Directors; provided, however, that the power of the Directors
to alter, amend, suspend or repeal the Bylaws or any portion thereof may be
denied as to any Bylaws or portion thereof enacted by the shareholders if at
the time of such enactment the shareholders shall so expressly provide.
ARTICLE IX
The Corporation reserves the right at any annual or special meeting of
shareholders to alter, amend or repeal any provision contained in its
Articles of Incorporation in the manner now or hereafter prescribed by the
statutes of Missouri, and all rights and powers conferred herein are granted
subject to this reservation.
ARTICLE X
A. No "Business Combination" (as hereinafter defined) shall be
consummated or effected unless such Business Combination shall have been
approved by the affirmative vote of the holders of not less than eighty
percent (80%) of the total voting power of all outstanding shares of voting
stock of the Corporation, voting as a single class. Such vote shall be
required notwithstanding the fact that no vote for such a transaction may be
required by law or that approval by some lesser percentage of shareholders
may be specified by law or in any agreement with any national securities
exchange or otherwise; provided, however, that such eighty percent
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(80%) vote shall not be required, and the provisions of Missouri law relating
to the vote required for shareholder approval, if any, shall apply to any
such Business Combination if:
1. Both of the following conditions are satisfied:
(a) The Aggregate amount of the cash and the "Fair Market Value"
(as hereinafter defined) of the property, securities or other consideration
to be received per share of capital stock of the Corporation incident to the
consummation of such Business Combination by any holder of such stock, other
than the Related Person (as hereinafter defined) involved in such Business
Combination, is not less than the highest of (i) the "Highest Per Share
Price" or the "Highest Equivalent Price" (as those terms are hereinafter
defined), paid by such Related Person in acquiring any of its holdings of the
Corporation's capital stock during the five-year period preceding the
announcement of such Business Combination; (ii) a price that includes the
same or a greater premium over the market price of such capital stock
immediately prior to the announcement of such Business Combination as the
greatest premium over market price paid by such Related Person in the
purchase of any shares of any class of the Corporation's capital stock during
the five-year period preceding the announcement of such Business Combination;
(iii) the Highest Per Share Price or the Highest Equivalent Price that such
Related Person shall, during the five-year period preceding the announcement
of such Business Combination, have offered to the shareholders of the
Corporation for any shares of the Corporation's capital stock or indicated in
writing that it would be prepared to offer under specified conditions; or
(iv) the value determined by an investment banking or appraisal firm to be a
fair price, for such shares from the point of view of all shareholders of the
Corporation other than any Related Person (such firm to be engaged solely on
behalf of such shareholders, to be paid a reasonable fee for its services
upon receipt of its determination, which fee shall not be contingent upon the
consummation of the action or transaction, and to be selected (a) by the
affirmative vote of not less than two-thirds of all of the "Continuing
Directors" (as hereinafter defined) or, (b) if such selection by the
Continuing Directors cannot be effected for any reason, by the Secretary of
State of the State of Missouri); and
(b) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934, as amended, shall have been mailed to all
shareholders of the Corporation for the purpose of soliciting shareholder
approval of such Business Combination. Such proxy statement shall contain at
the front thereof, in a prominent place, a statement by the Continuing
Directors of their position on the advisability (or inadvisability) of the
proposed Business Combination and an opinion of the investment banking or
appraisal firm described in Subsection 1(a)(iv) of this Section A. as to the
fairness of the terms of the proposed Business Combination from the point of
view of all shareholders of the Corporation other than any Related Person; or
2. The Continuing Directors shall have expressly approved such Business
Combination by the affirmative vote of not less than two-thirds of all of the
Continuing Directors either in advance of or subsequent to the acquisition of
outstanding shares of capital stock of the Corporation that caused the
Related Person involved to become a Related Person. In determining whether
or not to approve any such Business Combination, the Continuing Directors
shall give due consideration to all factors they may consider relevant
including without limitation
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(i) the social, legal, environmental and economic effects on the
Corporation's and/or its subsidiaries' policyholders, employees, sales
representatives and clients, on the communities and geographic areas in which
the Corporation and its subsidiaries operate or are located, and on any of
the business and properties of the Corporation and its subsidiaries, and (ii)
the adequacy of the consideration offered in relation not only to the current
market price of the Corporation's outstanding securities, but also to the
current value of the Corporation in a freely negotiated transaction and the
Continuing Directors' estimate of the Corporation's future value (including
the unrealized value of its properties and assets) as an independent going
concern.
B. For the purpose of this Article X:
1. The term "Business Combination" shall mean (i) any merger,
consolidation or share exchange of the Corporation or any of its subsidiaries
with or into a Related Person, in each case irrespective of which corporation
or company is to be the surviving entity; (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition to or with a Related Person
(in a single transaction or a series of related transactions) of all or a
substantial part of the assets of the Corporation (including without
limitation any securities of a subsidiary of the Corporation) or all or a
substantial part of the assets of any of its subsidiaries; (iii) any sale,
lease, exchange, mortgage, pledge, transfer or other disposition to or with
the Corporation, or to or with any of its subsidiaries (in a single
transaction or series of related transactions) of all or a substantial part
of the assets of a Related Person; (iv) the issuance or transfer by the
Corporation or any of its subsidiaries of any securities of the Corporation
or any of its subsidiaries to a Related Person (other than an issuance or
transfer of securities which is effected on a pro-rata basis to all
shareholders of the Corporation); (v) the acquisition by the Corporation or
any of its subsidiaries of any securities of a Related Person; (vi) any
recapitalization or reclassification of shares of any class of voting stock
of the Corporation or any merger or consolidation of the Corporation with any
of its subsidiaries which would have the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class of
capital stock of the Corporation (or any securities convertible into any
class of such capital stock) owned by any Related Person; (vii) any merger or
consolidation of the Corporation with any of its subsidiaries after which the
provisions of this Article X or Articles V, VIII, IX, or XI of these
Articles of Incorporation shall not appear (or in which provisions
inconsistent with any such provisions shall appear) in the Articles of
Incorporation of the surviving entity or after which Article I, Sections 3,
5, 6 and 7, Article II, Sections 1, 2 and 4, Article IV and Article VI of the
Bylaws of the Corporation shall not appear (or in which provisions
inconsistent with any such provisions shall appear) in the Bylaws of the
surviving entity; (viii) any plan or proposal for the liquidation or
dissolution of the Corporation; and (ix) any agreement, contract or other
arrangement providing for any of the transactions described in this
definition of Business Combination.
2. The term "Related Person" shall mean any individual,
corporation, partnership or other person or entity which, as of the record
date for the determination of shareholders entitled to notice of and to vote
on any Business Combination, or immediately prior to the consummation of any
such Business Combination, is a "Beneficial Owner" (as defined in Rule 13d-3
of the General Rules and Regulations under the Securities Exchange Act of
1934 as in effect at the date of the adoption of this Article X by the
shareholders of the Corporation) (collectively and as so in effect, the
"Exchange Act") of shares of any class or series of capital
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stock of the Corporation which, when combined with the shares of such class
or series of stock of which any "Affiliates" or "Associates" (as defined in
Rule 12b-2 of the Exchange Act) of such individual, corporation, partnership
or other person or entity are Beneficial Owners, amount to ten percent (10%)
or more of the outstanding shares of such class or series of stock, and any
Affiliate or Associate of any such Related Person.
3. The term "Continuing Director" shall mean any director of
the Corporation elected to a term of office on or whose term of office
continued as of the effective time of the merger of Lab Holdings, Inc. and
LabOne, Inc., and any other director that a majority of Continuing Directors
shall designate as a Continuing Director or shall recommend or approve for
election or nomination for election as a director of the Corporation.
4. Whether or not any proposed sale, lease, exchange, mortgage,
pledge, transfer or other disposition of part of the assets of any entity
involves a "substantial part" of the assets of such entity shall be
conclusively determined by the affirmative vote of not less than two-thirds
of all of the Continuing Directors; provided, however, that assets involved
in any single transaction or series of related transactions having an
aggregate Fair Market Value of more than fifteen percent (15%) of the total
consolidated assets of an entity and its subsidiaries as at the end of such
entity's last full fiscal year prior to such determination shall always be
deemed to constitute a "substantial part."
5. For the purposes of Subsection (1)(a) of Section A. of this
Article X, the term "other consideration to be received" shall include,
without limitation, Common Stock or other capital stock of the Corporation
retained by shareholders of the Corporation other than Related Persons or
parties to such Business Combination in the event of a Business Combination
in which the Corporation is the surviving corporation.
6. A "Related Person" shall be deemed to have acquired a share
of the capital stock of the Corporation at the time when such Related Person
became the Beneficial Owner thereof. With respect to shares owned of record
by Affiliates or Associates of a Related Person or other persons whose
ownership is attributed to a Related Person under the foregoing definition of
Related Person, for purposes of Subsection 7 of this Section B., such Related
Person shall be deemed to have purchased such shares at the higher of (a) the
price paid upon the acquisition thereof by the Affiliate, Associate or other
person who owns such shares of record, or (b) the market price of the shares
in question at the time when the Related Person became the Beneficial Owner
thereof.
7. The terms "Highest Per Share Price" and "Highest Equivalent
Price" shall mean the following: If there is only one class of capital stock
of the Corporation issued and outstanding, the Highest Per Share Price shall
mean the highest price that can be determined to have been paid or offered to
be paid during the preceding five years by the Related Person involved for
any share or shares of that class of capital stock. If there is more than
one class of capital stock of the Corporation issued and outstanding, the
Highest Equivalent Price shall mean with respect to each class and series of
capital stock of the Corporation, the amount determined by two-thirds of the
Continuing Directors, on whatever basis they believe to be appropriate, to be
the highest per share price equivalent to the highest price that can be
determined to have been
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paid or offered to be paid during the preceding five years by the Related
Person involved or any Affiliate or Associate of such Related Person for any
share or shares of any other class or series of capital stock of the
Corporation. In determining the Highest Per Share Price and Highest
Equivalent Price, all purchases by such Related Person or any such Affiliate
or Associate shall be taken into account regardless of whether the shares
were purchased before or after such Related Person became a Related Person.
The Highest Per Share Price and the Highest Equivalent Price shall include
any brokerage commissions, transfer taxes and soliciting dealers' fees paid
by such Related Person or any such Affiliate or Associate with respect to the
shares of capital stock of the Corporation acquired by such Related Person or
such Affiliate or Associate. In the event any Business Combination involving
a Related Person shall be proposed, the Continuing Directors shall determine
the Highest Equivalent Price for each class and series of the capital stock
of the Corporation of which there are shares issued and outstanding.
8. The term "Fair Market Value" shall mean (i) in the case of
stock, the highest closing sale price during the thirty day period
immediately preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed Stocks, or, if such stock
is not quoted on the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on the New York Stock Exchange, on the principal
United States securities exchange registered under the Exchange Act on which
such stock is listed, or, if such stock is not listed on any such exchange,
the highest closing sale price of such stock during the thirty day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or, if
such stock is not the subject of last sale reporting, the highest closing bid
quotation with respect to a share, or, if no such quotations are available,
the fair market value on the date in question of a share of such stock as
determined by the affirmative vote of not less than two-thirds of all of the
Continuing Directors, and (ii) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined by the affirmative vote of not less than two-thirds of all the
Continuing Directors.
ARTICLE XI
Notwithstanding any other provision of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some
lesser percentage may be specified by law, these Articles of Incorporation or
the Bylaws of the Corporation), the affirmative vote by holders of not less
than eighty percent (80%) of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors shall be
required to amend, modify, alter or repeal Article I, Sections 3, 5, 6 and 7,
Article II, Sections 1, 2 and 4, Article IV and Article VI of the Bylaws of
the Corporation (or to adopt any provision of the Articles of Incorporation
inconsistent with any provision of such Bylaw provisions) or Articles V,
VIII, IX or X or this Article XI of these Articles of Incorporation (or to
adopt any provision of the Articles of Incorporation inconsistent therewith);
provided, however, that the favorable vote of a majority of the votes
entitled to vote generally in the election of directors shall be sufficient
to approve any such amendment, modification, alteration or repeal of the
foregoing provisions of the Bylaws or Articles of Incorporation (or adoption
of any inconsistent provision) that has been favorably recommended to the
shareholders by resolution of the Board of Directors adopted by the
affirmative vote of not less than a majority of the entire Board of Directors.
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ARTICLE XII
The Board of Directors of the Corporation, when evaluating any offer or
proposal of another party to make a tender offering or exchange offer or
comparable offer for any equity security of the Corporation, to merge or
consolidate the Corporation with another corporation or to purchase or
otherwise acquire all or a substantial part of the assets of the Corporation
or to enter into any similar type of transaction, shall, in connection with
the exercise of its judgment in determining what is in the best interests of
the Corporation and its shareholders, give due consideration to the effect of
such a transaction on all relevant factors, including without limitation (a)
the consideration being offered in relation to the Board of Directors'
estimate of (i) the current value of the Corporation in a freely negotiated
sale of either the Corporation by merger, consolidation or otherwise, or all
or substantially all of the Corporation's assets, (ii) the current value of
the Corporation if orderly liquidated, and (iii) the future value of the
Corporation over a period of years as an independent entity discounted to
current value; (b) then existing political, economic and other factors
bearing on security prices generally or the current market value of the
Corporation's securities in particular; (c) whether the offer or proposal
might violate federal, state or local laws; (d) social, legal and economic
effects on the Corporation and its subsidiaries, and on policyholders,
employees, suppliers, customers, and others having similar relationships with
them, and the communities in which they conduct their businesses; (e) the
financial condition and earning prospects of the party making the offer or
proposal, including such party's ability to service its debt and other
existing or likely financial obligations; (f) the competence, experience and
integrity of the party making the offer or proposal; (g) the form of the
consideration offered, as well as such other factors as the Directors deem
relevant. Nothing contained in this Article XII shall require the
Corporation or any Director or officer to respond to any particular offer or
proposal.
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