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EXHIBIT 3.1
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
UNIVERSAL FOODS CORPORATION
These Articles of Amendment of the Articles of Incorporation of
Universal Foods Corporation, a corporation organized under Chapter 180 of the
Wisconsin Statutes (the "Corporation") are executed by the Secretary of the
Corporation for the purpose of amending the Corporation's Articles of
Incorporation.
1. The name of the Corporation is Universal Foods Corporation.
2. The following amendment to the Corporation's Articles of
Incorporation was adopted by the shareholders of the
Corporation on April 26, 2001 in accordance with Section
180.1003 of the Wisconsin Statutes:
RESOLVED, that the Amended and Restated Articles of
Incorporation be amended to change the name of the Company
from Universal Foods Corporation to Sensient Technologies
Corporation, and for that purpose to amend Section 1.1 thereof
to read in its entirety as follows:
"Section 1.1 Name
The name of the corporation is SENSIENT TECHNOLOGIES
CORPORATION."
3. The following amendment to the Corporation's Articles of
Incorporation was adopted by the board of directors of the
Corporation on April 26, 2001, in accordance with Section
180.1002 of the Wisconsin Statutes:
RESOLVED, that the Amended and Restated Articles of
Incorporation be amended to change the registered office of
the Company, and for that purpose to amend Section 6.1 thereof
to read in its entirety as follows:
"Section 6.1 Registered Office; Registered Name
The address of the registered office of the
corporation is 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202, and the registered agent at the registered office of
the corporation is John L. Hammond."
4. The amendments do not provide for an exchange,
reclassification, or cancellation of issued shares.
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Dated as of the 26th day of April, 2001.
UNIVERSAL FOODS CORPORATION
/s/ John L. Hammond
----------------------
Name: John L. Hammond
Title: Secretary
This document was drafted by Anne C. Cockburn
Please return to: John L. Hammond, Secretary
Sensient Technologies Corporation
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
414-271-6755
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UNIVERSAL FOODS CORPORATION
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
These Amended and Restated Articles of Incorporation, duly adopted
pursuant to Chapter 180 of the Wisconsin Statutes, supersede and take place of
the existing Articles of Incorporation and all amendments and restatements
thereto.
ARTICLE I.
NAME.
SECTION 1.1. Name.
The name of the corporation is UNIVERSAL FOODS CORPORATION.
ARTICLE II.
PURPOSES.
SECTION 2.1. Purposes.
The purposes for which the corporation is organized are to engage in
any lawful activity within the purposes for which corporations may be organized
under the Wisconsin Business Corporation Law.
ARTICLE III.
CAPITAL STOCK.
SECTION 3.1. Number of Shares and Classes.
The aggregate number of shares which the corporation has authority to
issue is 250,250,000 divided into the following classes:
Subsection 3.1.1. Common Stock. 250,000,000 shares at the par value of
$0.10 per share designated as "Common Stock."
Subsection 3.1.2. Cumulative Preferred Stock. 250,000 shares without
par value designated as "Cumulative Preferred Stock," of which 100,000 shares
are designated as Series A Participating Cumulative Preferred Stock pursuant to
Section 4.7 hereof.
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ARTICLE IV.
PREFERENCES, LIMITATION AND RELATIVE RIGHTS OF
CUMULATIVE PREFERRED STOCK
SECTION 4.1. Dividends and Distributions on Cumulative Preferred Stock.
Subsection 4.1.1. The holders of Cumulative Preferred Stock of all
series shall be entitled to receive dividends at such rates, upon such
conditions and at such times as shall be stated in the resolution or resolutions
of the Board of Directors providing for the issuance thereof and not
inconsistent with the provisions hereof.
Subsection 4.1.2. No dividend or other distribution, except a dividend
payable solely in Common Stock, shall be paid on Common Stock, and no shares of
Common Stock shall be purchased, redeemed or otherwise acquired by the
corporation for a consideration, otherwise than in exchange for or through
application of the proceeds of the sale of other Common Stock, if the payment of
such dividend or distribution on Common Stock, or the making of any such
purchase, redemption or other acquisition of Common Stock, will result in
reducing the Consolidated Net Worth of the corporation below 150% of the
aggregate involuntary liquidation amounts of all outstanding shares of
Cumulative Preferred Stock.
Subsection 4.1.3. All dividends on Cumulative Preferred Stock shall be
without priority as between series, shall be paid out of net earnings or any
surplus properly applicable to the payment thereof, shall be cumulative and
shall be paid or set apart before any dividends or other distributions shall be
paid or set apart for Common Stock, provided, however, that dividends may be
declared and paid on Common Stock in Common Stock of the corporation. Any
dividends paid upon the Cumulative Preferred Stock in an amount less than full
cumulative dividends accrued and in arrears upon all Cumulative Preferred Stock
outstanding shall, if more than one series be outstanding, be distributed among
the different series in proportion to the aggregate amounts which would be
distributable to the Cumulative Preferred Stock of each series if full
cumulative dividends were declared and paid thereon.
Subsection 4.1.4. The Cumulative Preferred Stock shall entitle the
holder thereof to receive, out of net profits of the corporation or out of any
surplus applicable to the payment of such dividends in each fiscal year as
declared at any time by the Board of Directors, dividends at the rate fixed in
the resolution or resolutions adopted by the Board of Directors pursuant to
which the issuance of such Cumulative Preferred Stock shall be authorized. The
dividends on the Cumulative Preferred Stock shall be cumulative, so that if at
any time the full amount of dividends accrued and in arrears on the Cumulative
Preferred Stock shall not be paid, the deficiency shall be payable before any
dividends or other distributions shall be paid or set apart on the Common Stock,
and before any sums shall be paid or set apart for the redemption of less than
all of the Cumulative Preferred Stock then outstanding. Dividends on Cumulative
Preferred Stock shall accrue from date of issue. Whenever all dividends accrued
and in arrears on Cumulative Preferred Stock shall have been declared and shall
have been paid or set apart, the Board of Directors may declare dividends on
Common Stock out of the remaining net profits of the corporation, or out of
surplus applicable to the payment of such dividends, subject to the restriction
set forth in Subsection 4.1.2 hereof.
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SECTION 4.2. Issuance of Cumulative Preferred Stock.
Subsection 4.2.1. No stock having preference or priority in rights or
security over the Cumulative Preferred Stock may be issued unless first approved
by the affirmative vote of such majority of the Cumulative Preferred Stock then
outstanding as then required by law.
Subsection 4.2.2. No Cumulative Preferred Stock shall be issued which,
after giving effect to such issuance, would result in the aggregate involuntary
liquidation amount of all outstanding shares of Cumulative Preferred Stock
exceeding 66-2/3% of Consolidated Net Worth of the corporation.
SECTION 4.3. Rights of Holders of Cumulative Preferred Stock on Liquidation.
In the event of the voluntary liquidation or winding up of the
corporation, the holders of Cumulative Preferred Stock shall be entitled to
receive in full the fixed voluntary liquidation amount thereof plus accrued
dividends thereon, all as provided in the resolution or resolutions providing
for the issuance thereof, and no more, before any amount shall be paid to the
holders of Common Stock. In the event of the involuntary liquidation of the
corporation, the holders of the Cumulative Preferred Stock shall be entitled to
receive in full the fixed involuntary liquidation amount thereof, plus accrued
dividends thereon, all as provided in the resolution or resolutions providing
for the issuance thereof, and no more, before any amount shall be paid to the
holders of Common Stock. The holders of all series of Cumulative Preferred Stock
shall be entitled to receive all amounts described in the preceding provisions
of this Section 4.3 out of the assets of the corporation, whether from capital,
surplus or earnings. As used in this Section 4.3 "accrued dividends" means, in
respect to each share of Cumulative Preferred Stock, an amount equal to the
fixed dividend rate per annum for each share (without interest thereon), from
the date from which cumulative dividends commenced to accrue in respect of such
share to the date as of which the computation is to be made, less the aggregate
amount (without interest) of all dividends paid thereon or declared and set
aside for payment in respect thereof, whether or not any such dividends shall
have been earned. If, upon any such voluntary or involuntary liquidation, the
assets of the corporation distributable as aforesaid among the holders of the
Cumulative Preferred Stock shall be insufficient to permit payment to them of
the full preferential amounts aforesaid, then the entire assets of the
corporation available for distribution to shareholders shall be distributed
ratably among the holders of Cumulative Preferred Stock in proportion to the
full preferential amounts to which they are respectively entitled.
The holders of Cumulative Preferred Stock shall not otherwise be
entitled to participate in any distribution of assets of the corporation which
shall be divided and distributed among the holders of Common Stock according to
their respective rights and preferences. No consolidation or merger of the
corporation with or into another corporation or corporations and no sale by the
corporation of all or substantially all of its assets shall be deemed a
liquidation or winding up of the corporation within the meaning of this Section
4.3.
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SECTION 4.4. Voting Rights of Cumulative Preferred Stock.
The holders of the Cumulative Preferred Stock shall, together with the
holders of Common Stock (neither the Cumulative Preferred Stock nor the Common
Stock voting as a class), possess full voting rights for the election of
directors and for other purposes, and for such purposes the holders of
Cumulative Preferred Stock shall, subject to the provisions of the Bylaws of the
corporation and of the Wisconsin Business Corporation Law relative to the fixing
of the record date, be entitled to one vote for each share held by them
respectively.
SECTION 4.5. Directors' Authority to Establish Series of Cumulative Preferred
Stock.
The Cumulative Preferred Stock may be issued in series from time to
time, with such designations, preferences and other rights, qualifications,
limitations or restrictions thereof as shall be stated and expressed in the
resolution or resolutions providing for the issuance of such series and adopted
by the Board of Directors pursuant to the authority hereby given as provided by
the Wisconsin Business Corporation Law and not inconsistent with the provisions
hereof. Without limiting the authority granted to the Board of Directors in this
Section, each series shall have such (a) rate of dividend; (b) price at and
terms and conditions on which shares may be redeemed; (c) amount payable upon
shares in event of voluntary or involuntary liquidation; (d) sinking fund
provisions for the redemption or purchase of shares; and (e) terms and
conditions on which shares may be converted, if the shares of any series are
issued with the privilege of conversion; as shall be stated or expressed in the
resolution or resolutions of the Board of Directors providing for the issuance
thereof.
SECTION 4.6. Definitions.
Subsection 4.6.1. The term "Consolidated Net Worth" of the corporation
shall mean the Consolidated Net Worth of the corporation and all of its
subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles.
Subsection 4.6.2. The term "Subsidiary" shall mean any corporation or
association of which not less than a majority of the capital stock or shares
(having the power in all events to vote for the election of directors or
trustees) is owned and controlled by the corporation either directly or through
another Subsidiary.
SECTION 4.7. Series A Participating Cumulative Preferred Stock.
Subsection 4.7.1. Designation and Amount. The shares of such series
shall be designated as "Series A Participating Cumulative Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting the Series A
Preferred Stock shall be 100,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the corporation
convertible into Series A Preferred Stock.
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Subsection 4.7.2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Cumulative Preferred Stock (or any similar stock) ranking pari
passu with the Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the holders of Common
Stock, par value $0.10 per share ("Common Shares"), of the corporation, and of
any other junior stock, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of December, March, June
and September in each year (each such date being referred to in this Section 4.7
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the corporation
shall at any time declare or pay any dividend on the Common Shares payable in
Common Shares, or effect a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser number of Common Shares,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
(B) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, 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 A Preferred Stock 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. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
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Subsection 4.7.3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders of
the corporation.
(B) Except as otherwise provided in these Articles of
Incorporation, in any other Resolution of the Board of Directors creating a
series of Cumulative Preferred Stock or any similar stock, or by law, the
holders of shares of Series A Preferred Stock and the holders of Common Shares
and any other capital stock of the corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
shareholders of the corporation.
(C) Except as set forth in these Articles of
Incorporation or as otherwise provided by law, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Shares as set forth herein) for taking any corporate action.
Subsection 4.7.4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Subsection
4.7.2 are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of
the corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
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(B) The corporation shall not permit any subsidiary of
the corporation to purchase or otherwise acquire for consideration any shares of
stock of the corporation unless the corporation could, under paragraph (A) of
this Subsection 4.7.4, purchase or otherwise acquire such shares at such time
and in such manner.
Subsection 4.7.5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Cumulative Preferred Stock and may be reissued as part of a new series
of Cumulative Preferred Stock subject to the conditions and restrictions on
issuance set forth in these Articles of Incorporation or in any other Resolution
of the Board of Directors creating a series of Cumulative Preferred Stock or any
similar stock or as otherwise required by law.
Subsection 4.7.6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $250 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Shares, or (2) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the corporation shall at any time declare or pay any
dividend on the Common Shares payable in Common Shares, or effect a subdivision
or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of Common Shares outstanding immediately
after such event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to such event.
Subsection 4.7.7. Consolidation, Merger, etc. In case the corporation
shall enter into any consolidation, merger, combination or other transaction in
which the Common Shares are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each Common Share is changed or exchanged. In the
event the corporation shall at any time declare or pay any dividend on the
Common Shares payable in Common Shares, or effect a subdivision or combination
or consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater or
lesser number of Common Shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of Common Shares outstanding
immediately after
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such event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
Subsection 4.7.8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
Subsection 4.7.9. Rank. The Series A Preferred Stock shall be of equal
rank, with respect to the payment of dividends and the distribution of assets,
to all series of any other class of the corporation's Cumulative Preferred
Stock.
Subsection 4.7.10. Amendment. These Articles of Incorporation shall not
be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class. In addition to the rights, preferences and
privileges accorded to the Series A Preferred Stock in this Section 4.7, the
Series A Preferred Stock shall have the rights, privileges and preferences, and
be subject to the limitations, accorded generally to the Cumulative Preferred
Stock in the foregoing Sections 4.1 through 4.6.
ARTICLE V.
PRE-EMPTIVE RIGHTS.
SECTION 5.1. Pre-emptive Rights.
No holder of any class of stock of the corporation shall, because of
such holder's ownership of said stock, have any pre-emptive or other right to
purchase, or subscribe for, or take any part of any class of stock, or any part
of the notes, debentures, bonds or other securities convertible into or carrying
options or warrants to purchase any class of stock of this corporation.
ARTICLE VI.
REGISTERED OFFICE; REGISTERED AGENT.
SECTION 6.1. Registered Office; Registered Agent.
The address of the registered office of the corporation is 433 East
Michigan Street, Milwaukee, Wisconsin 53202, and the registered agent at the
registered office of the corporation is John L. Hammond.
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ARTICLE VII.
DIRECTORS; REMOVAL OF DIRECTORS.
SECTION 7.1. Directors.
The number of directors constituting the Board of Directors of the
corporation shall be fixed from time to time by the Bylaws of the corporation.
The Board of Directors of the corporation shall be divided into three (3)
classes. The term of office of the first class of directors shall expire at the
first annual meeting after their election, the term of office of the second
class shall expire at the second annual meeting after their election and that of
the third class shall expire at the third annual meeting after their election.
At each annual meeting after classification of the Board of Directors, the class
of directors whose term expires at the time of such election shall be elected to
hold office until the third succeeding annual meeting. The number of directors
in each class shall be as fixed from time to time in the Bylaws.
SECTION 7.2. Removal of Directors.
A director may be removed from office by affirmative vote of two thirds
(2/3) of the outstanding shares entitled to vote for the election of such
director, taken at a meeting of shareholders called for that purpose, and any
vacancy so created may be filled by such shareholders.
ARTICLE VIII.
ACQUISITION OF SHARES.
SECTION 8.1. Acquisition of Shares.
The corporation is authorized by action of the Board of Directors
without consent of shareholders to purchase, take, receive or otherwise acquire
shares of the corporation subject to the provisions of Sections 180.0603,
180.0631, and 180.0640 of the Wisconsin Statutes and Section 4.1.2 hereof.
ARTICLE IX.
DISTRIBUTIONS.
SECTION 9.1. Distributions.
The Board of Directors may from time to time distribute to shareholders
in partial liquidation out of stated capital or net capital surplus of the
corporation, a portion of its assets, in cash or property.
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ARTICLE X.
REPURCHASE OF COMMON STOCK.
SECTION 10.1. Repurchase Rights.
Subsection 10.1.1. In the event that any person (Acquiring Person) (i)
who is the beneficial owner, directly or indirectly, of more than fifty percent
of the Common Stock outstanding becomes the beneficial owner, directly or
indirectly, of any additional Common Stock pursuant to a tender offer or (ii)
becomes the beneficial owner, directly or indirectly, of more than fifty percent
of the Common Stock outstanding and any of such Common Stock was acquired
pursuant to a tender offer, each holder of Common Stock, other than the
Acquiring Person or a transferee of the Acquiring Person, shall have the right
until and including the thirtieth day following the date the notice to holders
of Common Stock referred to in Section 10.3 herein is mailed to have the Common
Stock held by such holder repurchased by the corporation at the Repurchase Price
determined as provided in Section 10.5 herein, and each holder of securities
convertible into Common Stock or of options, warrants, or rights exercisable to
acquire Common Stock prior to such thirtieth day, other than the Acquiring
Person or a transferee of the Acquiring Person, shall have the right
simultaneously with the conversion of such securities or exercise of such
options, warrants, or rights to have the Common Stock to be received thereupon
by such holder repurchased by the corporation at the Repurchase Price.
Subsection 10.1.2. All repurchase rights hereunder shall be subject to,
and limited by, any provision contained in the Wisconsin Statutes, in Article IV
hereof, or in any loan agreement entered into at any time by the corporation,
which limits the amounts which may be used by the corporation to repurchase
Common Stock of the corporation.
Subsection 10.1.3. No holder of Common Stock of the corporation shall
have any right to have Common Stock repurchased by the corporation pursuant to
this Article X if the corporation, acting through a majority of its Board of
Directors, shall within ten (10) days following the announcement or publication
of such tender offer or following any amendment of such tender offer recommend
to the holders of Common Stock that such tender offer be accepted.
SECTION 10.2. Definitions.
Subsection 10.2.1. The term "person" shall include an individual, a
corporation, partnership, trust or other entity. When two or more persons act as
a partnership, limited partnership, syndicate, or other group for the purpose of
acquiring Common Stock, such partnership, syndicate or group shall be deemed a
"person".
Subsection 10.2.2. For the purpose of determining whether a person is
an Acquiring Person, such person shall be deemed to beneficially own (i) all
Common Stock with respect to which such person has the capability to control or
influence the voting power in respect thereof and (ii) all Common Stock which
such person has the immediate or future right to acquire, directly or
indirectly, pursuant to agreements, through the exercise of options, warrants or
rights or through the conversion of convertible securities or otherwise; and all
Common Stock which such person has the right to acquire in such manner shall be
deemed to be outstanding shares, but Common Stock which any other person has the
right to acquire in such manner shall not be deemed to be outstanding shares.
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Subsection 10.2.3. The acquisition of Common Stock by the corporation
or by any person controlled by the corporation shall not engender the right to
have Common Stock repurchased pursuant to this Article.
Subsection 10.2.4. The right to have Common Stock repurchased pursuant
to this Article shall attach to such shares and shall not be personal to the
holder thereof.
Subsection 10.2.5. The term "tender offer" shall mean an offer to
acquire or an acquisition of Common Stock pursuant to a request or invitation
for tenders or an offer to purchase such shares for cash, securities or any
other consideration.
Subsection 10.2.6. The term "market purchases" shall mean the
acquisition of Common Stock from holders of such shares in privately negotiated
transactions or in transactions effected through a broker or dealer.
Subsection 10.2.7. Subject to the provisions of Section 10.2.2 herein,
"outstanding shares" shall mean shares of Common Stock which at the time in
question have been issued by the corporation and not reacquired and held or
retired by it or held by any subsidiary of the corporation.
SECTION 10.3. Repurchase Procedure.
Not later than thirty (30) days following the date on which the
corporation receives credible notice that any person has become an Acquiring
Person whereupon the right shall be engendered to have Common Stock repurchased
by the corporation under this Article X, the corporation shall give written
notice, by first class mail, postage prepaid, at the address shown on the
records of the corporation, to each holder of record of Common Stock (and to any
other person known by the corporation to have rights to demand repurchase
pursuant to Section 10.1 of this Article) as of a date not more than seven (7)
days prior to the date of the mailing pursuant to this Section 10.3 and shall
advise each such holder of the right to have shares repurchased and the
procedures for such repurchase. In the event that the corporation fails to give
notice as required by this Section 10.3, any holder entitled to receive such
notice may within thirty (30) days thereafter serve written demand upon the
corporation to give such notice. If within thirty (30) days after the receipt of
written demand the corporation fails to give the required notice, such holder
may at the expense and on behalf of the corporation take such reasonable action
as may be appropriate to give notice or to cause notice to be given pursuant to
this Section 10.3.
Subsection 10.3.1. In the event Common Stock is subject to repurchase
in accordance with this Article X, the directors of the corporation shall
designate a Repurchase Agent, which shall be a corporation or association (i)
organized and doing business under the laws of the United States or any State,
(ii) subject to supervision or examination by Federal or State authority, (iii)
having combined capital and surplus of at least $5,000,000 and (iv) having the
power to exercise corporate trust powers.
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Subsection 10.3.2. For a period of ninety days from the date of the
mailing of the notice to holders of Common Stock referred to in this Section
10.3, holders of Common Stock and other persons entitled to have Common Stock
repurchased pursuant to this Article X may, at their option, deposit
certificates representing all or less than all Common Stock held of record by
them with the Repurchase Agent together with written notice that the holder
elects to have such shares repurchased pursuant to this Article X. Repurchase
shall be deemed to have been effected at the close of business on the day such
certificates are deposited in proper form with the Repurchase Agent.
Subsection 10.3.3. The corporation shall promptly deposit in trust with
the Repurchase Agent cash in an amount equal to the aggregate Repurchase Price
of all of the Common Stock deposited with the Repurchase Agent for purposes of
repurchase.
Subsection 10.3.4. As soon as practicable after receipt by the
Repurchase Agent of the cash deposit by the corporation referred to in this
Section 10.3, the Repurchase Agent shall issue its checks payable to the order
of the persons entitled to receive the Repurchase Price of the Common Stock in
respect of which such cash deposit was made.
Subsection 10.3.5. In the event the corporation is unable to deposit
with the Repurchase Agent cash in the full amount of the aggregate Repurchase
Price of all shares deposited for repurchase, because of limitations upon
repurchase of Common Stock contained in the Wisconsin Statutes, in Article IV
hereof, or in any loan agreement entered into at any time by the corporation,
the corporation shall promptly deposit with the Repurchase Agent the maximum
amount of cash which may be used for the repurchase of Common Stock, under the
most restrictive of the applicable limitations upon such repurchase. In the
event of deposit of less than the full aggregate Repurchase Price pursuant to
the provisions of this subsection, the Repurchase Agent shall use the amount so
deposited to repurchase the deposited shares pro tanto, in proportion to the
number of shares deposited by each shareholder for repurchase. Certificates
representing all shares which remain unpurchased shall be returned to the
depositors thereof as soon as practicable thereafter, and there shall be no
further repurchase rights with respect to such shares arising in connection with
the transactions already completed.
SECTION 10.4. Retired Stock.
All Common Stock with respect to which repurchase has been effected
pursuant to this Article X shall thereupon be deemed retired.
SECTION 10.5. Repurchase Price.
The Repurchase Price shall be the amount payable by the corporation in
respect of each share of Common Stock with respect to which repurchase has been
demanded pursuant to this Article X and shall be the greatest amount determined
on any of the following three bases:
(i) The highest price per share of Common Stock, including any
commission paid to brokers or dealers for solicitation or whatever, at which
Common Stock held by the Acquiring Person were acquired pursuant to a tender
offer regardless of when such tender offer was made or were acquired pursuant to
any market purchase or otherwise within eighteen months prior to the notice to
holders of Common Stock referred to in Section 10.3 herein. For purposes of this
subsection (i), if the consideration paid in any such acquisition of Common
Stock consisted, in whole or part, of consideration other than
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cash, the Board of Directors of the corporation shall take such action, as in
its judgment it deems appropriate, to establish the cash value of such
consideration, but such valuation shall not be less than the cash value, if any,
ascribed to such consideration by the Acquiring Person.
(ii) The highest sale price per share of Common Stock for any
trading day during the eighteen months prior to the notice to holders of Common
Stock referred to in Section 10.3 herein. For purposes of this subsection (ii),
the sale price for any trading day shall be the last sale price per share of
Common Stock traded on the New York Stock Exchange or other national securities
exchange, or, if Common Stock of the corporation is not then traded on a
national securities exchange, the mean of the closing bid and asked price per
share of Common Stock.
(iii) The amount of shareholders' equity in respect of each
outstanding share of Common Stock as determined in accordance with generally
accepted accounting principles and as reflected in any published report by the
corporation as at the fiscal year quarter ending immediately preceding the
notice to shareholders referred to in Section 10.3 herein.
Subsection 10.5.1. The determinations to be made pursuant to Section
10.5 shall be made by the Board of Directors not later than the date of the
notice to holders of Common Stock referred to in Section 10.3 herein. In making
such determination the Board of Directors may engage such persons, including
investment banking firms and the independent accountants, who have reported on
the most recent financial statements of the corporation, and utilize employees
and agents of the corporation, who will, in the judgment of the Board of
Directors, be of assistance to the Board of Directors.
Subsection 10.5.2. The determinations to be made pursuant to this
Section 10.5, when made by the Board of Directors acting in good faith on the
basis of such information and assistance as was then reasonably available for
such purpose, shall be conclusive and binding upon the corporation and its
shareholders, including any person referred to in Section 10.1 herein.
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