1
EXHIBIT 3.2
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
Date Received (FOR BUREAU USE ONLY)
Name: Gerald T. Lievois
Dykema Gossett PLLC
Address: 1577 North Woodward, Ste 300
Bloomfield Hills, MI 48304 EFFECTIVE DATE:
DOCUMENT WILL BE RETURNED TO NAME AND ADDRESS INDICATED ABOVE
CORPORATE IDENTIFICATION NUMBER
0 5 9 - 8 3 7
RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended,
the undersigned corporation executes the following Restated Articles of
Incorporation which shall supersede all prior Articles of Incorporation, as
amended, of the corporation and shall be the Articles of Incorporation for the
corporation.
ARTICLE I
Name
The name of the corporation is Lobdell Emery Corporation (the
"Corporation").
ARTICLE II
Purpose
The purpose or purposes for which the Corporation is organized is to
engage in any activity within the purposes for which corporations may be
organized under the Michigan Business Corporation Act ("the MBCA").
2
ARTICLE III
Authorized Capital
1. The total number of shares of stock which the Corporation
shall have the authority to issue is 20,000 shares of common stock
("Common Stock") and 600,000 shares of preferred stock ("Preferred
Stock").
2. The designations, voting powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of the shares of stock shall be as
follows:
General Provisions Applicable to All Shares
Subject to the power of the Board of Directors to provide to the contrary
with respect to any one or more series of Preferred Stock at any time
authorized, no holder of stock of any class of the Corporation shall be
entitled as a matter of right to purchase or subscribe for any part of any
unissued stock of any class, or of any additional stock of any class of capital
stock of the Corporation, or of any bonds, certificates of indebtedness,
debentures, or other securities, whether or not convertible into other
securities, but any such stock or other securities may be issued and disposed
of pursuant to resolution adopted by the Board of Directors to such persons,
firms, corporations or associations and upon such terms and for such
consideration as the Board of Directors in the exercise of its discretion may
determine and as may be permitted by law without action by the shareholders of
the Corporation. The Board of Directors may provide for payment therefor to be
received by the Corporation in cash, property, or services, as authorized by
the MBCA. Any and all shares of stock so issued for which the consideration so
provided for has been paid or delivered, as provided in the MBCA, shall be
deemed fully paid and not liable to any further call or assessment.
Provisions Applicable to Common Stock
Except as otherwise required by law or by these Articles of Incorporation,
each holder of Common Stock shall have one vote for each share of stock held by
such holder on all matters to be voted upon by the holders of Common Stock
whether or not any one or more series of Preferred Stock shall be entitled to
voting rights or to more or less than one vote for each share of Preferred
Stock.
Subject to the preferential dividend rights, if any, applicable to shares
of Preferred Stock and subject to applicable requirements, if any, with respect
to the setting aside of sums for purchase of, redemption of or sinking funds
for, Preferred Stock, the holders of Common Stock shall be entitled to receive,
to the extent permitted by law, such dividends as may be declared from time to
time by the Board of Directors.
2
3
In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of Common Stock shall be entitled, after payment or
provision for payment of the debts and other liabilities of the Corporation and
the amounts to which the holders of any Preferred Stock shall be entitled, to
share ratably in the remaining net assets of the Corporation or the proceeds
thereof.
Provisions Applicable to Preferred Stock
The Board of Directors is expressly authorized at any time, and from time
to time, to provide for the issuance of shares of Preferred Stock in one or
more series, and for such consideration or considerations as the Board of
Directors may determine, with such voting powers, full or limited, or without
voting powers and with 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 resolution or
resolutions providing for the issue thereof adopted by the Board of Directors,
all except as otherwise required by law or by these Articles of Incorporation
and including, but not limited to, the following:
(a) The distinctive designation and number of shares comprising
such series.
(b) The dividend rate or rates on the shares of such series and
the relation such dividends shall bear to the dividends payable on
any other class of capital stock or on any other series of Preferred
Stock, the terms and conditions upon which and the periods in
respect of which dividends shall be payable, whether and upon what
conditions such dividends shall be cumulative and, if cumulative,
the date or dates from which dividends shall accumulate.
(c) Whether the shares of such series shall be redeemable and, if
redeemable, whether redeemable for cash, bonds, securities, or other
property or rights, including securities of any other corporation,
at the option of either the holder or the Corporation or upon the
happening of a specified event, the limitations and restrictions
with respect to such redemption, the time or times when the price or
prices or rate or rates at which, the adjustments with which and the
manner in which such shares shall be redeemable, including the
manner of selecting shares of such series for redemption if less
than all shares are to be redeemed.
(d) The rights to which the holders of shares of such series
shall be entitled and the preferences, if any, over any other series
(or of any other series over such series) upon the voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, which rights may vary depending on whether such
liquidation, dissolution or winding up is voluntary or involuntary
and, if voluntary, may vary at different dates.
(e) Whether the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund and, if so,
whether and upon what conditions such purchase, retirement, or
sinking fund shall be cumulative or noncumulative, the extent
3
4
to which and the manner in which such fund shall be applied to
the purchase or redemption of the shares of such series for
retirement or to other corporate purposes and the terms and
provisions relative to the operation thereof.
(f) Whether the shares of such series shall be convertible or
exchangeable into shares of any other class or of any other series
of any class of capital stock, or into bonds, notes or debentures of
the Corporation, at the option of either the holder or the
Corporation or upon the happening of a specified event, and, if so
convertible or exchangeable, the price or prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting
the same, and any other terms and conditions of such conversion or
exchange.
(g) The voting powers, full and/or limited, if any, of the shares
of such series, and whether and under what conditions the shares of
such series (alone or together with the shares of one or more other
series) shall be entitled to vote separately as a single class, upon
any merger or other transaction of the Corporation, or upon any
other matter, including but without limitation the election of one
or more additional directors of the Corporation in case of dividend
arrearages or other specified events.
(h) Whether the issuance of any additional shares of such series,
or of any shares of any other series, shall be subject to
restrictions as to issuance, or as to the powers, preferences or
rights of any such other series.
(i) Any other preferences, privileges and powers and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such series, as the Board of
Directors may deem advisable and as shall not be inconsistent with
the provisions of these Articles of Incorporation.
All shares of Preferred Stock of any one series shall be of equal rank and
identical in all respects except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon, if
cumulative, shall be cumulative.
Any resolution of the Board of Directors establishing and designating a
series of Preferred Stock and fixing and defining the relevant rights and
preferences thereof shall be filed with the Department of Consumer and Industry
Services of the State of Michigan and when so filed shall constitute an
amendment to these Articles of Incorporation.
SEE ATTACHED ANNEX A FOR ADDITIONAL PROVISIONS TO THIS ARTICLE III.
4
5
ARTICLE IV
Registered Office and Resident Agent
The address of the initial registered office is 2000 North Woodward
Avenue, Suite 130, Bloomfield Hills, Michigan 48304. The mailing address of
the initial registered office is 2000 North Woodward Avenue, Suite 130,
Bloomfield Hills, Michigan 48304. The name of the initial resident agent is
Robert H. Orley.
ARTICLE V
Limitation of Director Liability
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, provided that the foregoing shall not eliminate or limit
the liability of a director for any of the following: (i) breach of the
director's duty of loyalty to the Corporation or its shareholders; (ii) acts or
omissions not in good faith or that involve intentional misconduct or knowing
violation of law; (iii) a violation of Section 551(1) of the MBCA; or (iv) a
transaction from which the director derived an improper personal benefit.
If the MBCA hereafter is amended to authorize the further elimination of
limitation of the liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal liability contained
herein, shall be limited to the fullest extent permitted by the MBCA as so
amended.
No amendment or repeal of this Article V shall apply to or have any effect
on the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
ARTICLE VI
Compromise, Arrangement, or Plan of Reorganization
Whenever a compromise or arrangement or any plan of reorganization of this
Corporation is proposed between this Corporation and its creditors or any class
of them and/or between this Corporation and its shareholders or any class of
them, any court of equity jurisdiction within the state of Michigan may, on the
application of this Corporation or of any creditor or any shareholder thereof,
or on the application of any receiver or receivers appointed for this
Corporation, order a meeting of the creditors or class of creditors, and/or of
the shareholders or class of shareholders, as the case may be, to be affected
by the proposed compromise or arrangement or reorganization, to be summoned in
such manner as said court directs.
5
6
If a majority in number, representing three-fourths (3/4) in value of the
creditors or class of creditors, and/or of the shareholders or class of
shareholders, as the case may be, to be affected by the proposed compromise or
arrangement or reorganization, agrees to any compromise or arrangement or to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, said compromise or arrangement and said reorganization shall, if
sanctioned by the court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the shareholders or
class of shareholders, as the case may be, and also on this Corporation.
ARTICLE VII
Corporate Action Without Meeting of Shareholders
Any action required or permitted by the MBCA to be taken at any annual or
special meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote thereon were present and
voted.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to shareholders who have not
consented in writing.
6
7
ANNEX A
1. DESIGNATION OF PREFERRED STOCK:
(a) Four Hundred Eighty Thousand (480,000) shares of Preferred Stock of
the Company are hereby constituted as the original number of shares of a series
of Preferred Stock designated as Series A $3.00 Cumulative Preferred Stock
("Series A Preferred").
(b) Sixty Thousand (60,000) shares of Preferred Stock of the Company are
hereby constituted as the original number of shares of a series of Preferred
Stock designated as Series B Preferred Stock ("Series B Preferred"). The term
"Articles of Incorporation" when used herein shall include all statements or
certificates filed pursuant to law with respect to any series of Preferred
Stock.
2. PREFERENCES:
The Company may issue any shares of preferred stock or any other class
or series of stock ranking junior to or on a parity with the Series A Preferred
or the Series B Preferred as to dividends, redemption rights, liquidation rights
or other rights without the affirmative vote or written consent of the holders
of the Series A Preferred or the Series B Preferred. So long as any shares of
Series A Preferred or Series B Preferred remain outstanding, the Company may
not issue any shares of preferred stock or any other class or series of stock
ranking senior to the Series A Preferred as to dividends, redemption rights,
liquidation rights or other rights without the affirmative vote or written
consent of a majority of the outstanding shares of Series A Preferred and
Series B Preferred, voting together as a single class.
3. DIVIDENDS:
(a) The holders of Series A Preferred shall be entitled to receive when
and as declared by the Board of Directors of the Company out of funds of the
Company legally available for payment, cumulative cash dividends at an annual
rate of $3.00 per share. Dividends on the Series A Preferred shall be payable
semi-annually, on July 15 and January 15 of each year or on the first
succeeding business day thereafter if such day is not a business day (each a
"Dividend Payment Date"), commencing July 15, 1997. Such dividends shall be
payable to holders of record as they appear on the stock records of the Company
at the close of business on such record dates (each a "Record Date"), not
exceeding 45 days nor fewer than 10 days preceding the payment dates thereof,
as shall be fixed by the Board of Directors. Semi-annual dividend periods
(each a "Dividend Period") commence on and include the fifteenth day of July
and January of each year, and shall end on and include the day next preceding
the next following Dividend Payment Date. Dividends shall accrue
A-1
8
from the date of issuance, whether or not earned or declared. Dividends shall
be cumulative from such date, whether or not in any Dividend Period or Dividend
Periods there shall be funds of the Company legally available for the payment
of such dividends. Accumulations of dividends on shares of Series A Preferred
shall not bear interest. Dividends payable on the Series A Preferred for any
period greater or less than a full Dividend Period shall be computed on the
basis of a 360-day year consisting of twelve 30-day months. Dividends payable
on the Series A Preferred Stock for each full Dividend Period shall be computed
by dividing the annual dividend rate by two.
(b) All dividends declared on the Series A Preferred for any Dividend
Period and on any class or series of stock of the Company ranking on a parity
with the Series A Preferred as to dividends shall be declared pro rata so that
the amounts of dividends per share declared for such period on the Series A
Preferred and on any class or series of stock ranking on a parity with the
Series A Preferred as to dividends, that were outstanding during such period,
shall in all cases bear to each other the same ratio that the respective
dividend rates of such stock for such period bear to each other.
(c) The Company shall not declare or pay any dividend or other
distribution, other than in Common Stock or other stock not expressly
designated as being on a parity with or senior to the Series A Preferred
("Junior Stock"), with respect to any Junior Stock or Common Stock of the
Company or redeem or set apart funds for the purchase or redemption of any
Junior Stock through a sinking fund or otherwise, or purchase any shares of its
Common Stock, unless (i) all accrued and unpaid dividends with respect to the
Series A Preferred and any other stock ranking on a parity with the Series A
Preferred ("Parity Stock") have been paid, or funds have been set apart for
payment of such dividends and (ii) sufficient funds have been set apart for the
Company for the payment of the dividend for the current Dividend Period with
respect to the Series A Preferred and any Parity Stock. Provided, however,
that this restriction shall not apply to the repurchase of shares of Common
Stock from employees, officers, directors, consultants or other persons
performing services for the Company or any subsidiary pursuant to agreements
under which the Company has the option to repurchase such shares upon the
occurrence of certain events, such as the termination of employment.
4. REDEMPTION:
(a) The Company shall redeem, from any source of funds legally available
therefor, all of the Series A Preferred and the Series B Preferred on December
31, 2006 (the "Mandatory Redemption Date"). The Company shall effect such
redemption on the Mandatory Redemption Date by paying in cash in exchange for
the shares of Series A Preferred and Series B Preferred to be redeemed a sum
equal to $100.00 per share of Series A Preferred and $100.00 per share of
Series B Preferred (each as adjusted for any stock dividends, combinations or
splits with respect to such shares) plus, with respect to the Series A
Preferred, all declared or accumulated but unpaid dividends on such shares (the
"Redemption Price"). However, if BMG-MI, Inc., the parent of the Company, does
not commence a public offering of common stock which is (i) exclusively for
cash, (ii) subject to an effective registration statement filed with the
Securities and Exchange Commission and (iii) underwritten on a firm commitment
basis by one or more underwriters (an "Initial Public Offering") prior to June
30, 2006, the payment for the shares of Series A Preferred to
A-2
9
be redeemed shall be a sum equal to $103.00 per share of Series A Preferred (as
adjusted for any stock dividends, combinations or splits with respect to such
shares) plus all declared or accumulated but unpaid dividends on such shares.
(b) At the individual option of each holder of shares of Series A
Preferred, if an Initial Public Offering does not take place on or before
December 31, 2001, the Company shall redeem on December 31 of each year
commencing with 2002 and continuing thereafter, (each an "Optional Redemption
Date"), the number of shares of Series A Preferred held by such holder that is
specified in a written request for redemption, which shall include the specific
number of shares to be redeemed from such holder and the specific certificates
representing the shares to be redeemed, delivered to the Company by the holder
on or prior to the October 1 immediately preceding the applicable Optional
Redemption Date, by paying in cash therefor, the Redemption Price, provided,
however that the Company shall not be required under this Section 4(d) to
redeem from any particular holder, a number of shares of Series A Preferred
greater than 20% of the aggregate number of shares of Series A Preferred held
by such holder immediately prior to the initial Optional Redemption Date.
(c) As used herein, the term "Redemption Date" shall refer to each of
"Mandatory Redemption Date" and "Optional Redemption Date." At least 15, but
no more than 30, days prior to each Redemption Date, the Company shall mail
written notice (the "Redemption Notice"), postage prepaid, to each holder of
record of the Series A Preferred or the Series B Preferred to be redeemed, at
the holder's address last shown on the Company's records, notifying such holder
of the redemption to be effected, specifying the number of shares to be
redeemed from such holder, the Redemption Date, the Redemption Price, the place
at which payment may be obtained and calling upon such holder to surrender to
the Company, in the manner and at the place designated, such holder's
certificate or certificates representing the shares to be redeemed. On or
after the Redemption Date, and against payment of the Redemption Price, each
holder of the Series A Preferred and Series B Preferred to be redeemed shall
surrender the certificates representing such shares to the Company, in the
manner and at the place designated in the Redemption Notice, and thereupon the
Redemption Price of such shares shall be payable in immediately available funds
to the order of the person whose name appears on such certificate or
certificates as the owner of such shares, and each surrendered certificate
shall be canceled. In the event less than all the shares represented by any
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares.
(d) If and when the Redemption Price is paid, dividends shall cease to
accrue on the Series A Preferred called for redemption, and the Series A
Preferred and Series B Preferred shall no longer be deemed to be outstanding
and all rights of the holders of such shares, except the right to receive the
Redemption Price without interest upon surrender of their certificate or
certificates, shall cease and terminate with respect to such shares.
(e) In the event that cumulative dividends on any other series of stock
ranking, as to dividends, on a parity with the Series A Preferred have not been
paid or declared and set apart for payment, the Series A Preferred and Series B
Preferred may not be redeemed in part and the Company may not purchase or
acquire shares of Series A Preferred, Series B Preferred or such other
A-3
10
stock otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of shares of Series A Preferred, Series B Preferred and
such other stock.
5. LIQUIDATION:
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, after payment of the
debts and other liabilities of the Company and provision for the rights in such
event of any series of stock ranking prior in liquidation to the Series A
Preferred and Series B Preferred, if any, the holders of Series A Preferred and
the Series B Preferred shall be entitled to receive $100.00 per share (as
adjusted for any stock dividends, combinations or splits with respect to such
shares) plus, with respect to the Series A Preferred, an amount per share equal
to any unpaid, accrued and accumulated dividends (whether or not earned or
declared) without interest. The Series A Preferred and the Series B Preferred
shall rank on a parity as to the receipt of the respective preferential amounts
for each such series upon the occurrence of such event. If upon liquidation,
dissolution, or winding up of the Company, the assets of the Company available
for distribution to its shareholders shall be insufficient to pay the holders
of the Series A Preferred and the Series B Preferred the full amounts to which
they respectively shall be entitled, the holders of the Series A Preferred and
the Series B Preferred shall share ratably in any distribution of assets
according to the respective amounts which would be payable in respect of the
shares held by them upon such distribution if all amounts payable on or with
respect to said shares were paid in full.
(b) Upon any such liquidation, dissolution or winding up, the
preferential amounts with respect to the Series A Preferred and the Series B
Preferred and any class or series ranking on a parity with the Series A
Preferred and the Series B Preferred shall be distributed pro rata in
accordance with the aggregate preferential amounts of the Series A Preferred,
Series B Preferred and such other classes or series of stock, if any, out of or
to the extent of the net assets of the Company legally available for such
distribution, before any distributions are made with respect to any Common
Stock or any Junior Stock. Neither a consolidation or merger of the Company
with another Company nor a sale or transfer of all or substantially all of the
Company's assets nor a statutory share exchange shall be considered a
liquidation, dissolution or winding up, voluntary or involuntary, of the
Company.
6. VOTING RIGHTS:
(a) The holders of the Series A Preferred and the Series B Preferred
shall not be entitled to any voting rights, except as set forth below, or as
required by applicable law. So long as any shares of the Series A Preferred or
Series B Preferred are outstanding, the Company will not, without the consent
of the holders of a majority of the outstanding shares of the Series A
Preferred and Series B Preferred, voting together as a single class, (a) amend,
alter or repeal or otherwise change any provision of its Articles of
Incorporation, or the resolutions of its Board of Directors authorizing and
creating the Series A Preferred and Series B Preferred so as to materially and
adversely affect the rights, preferences, powers or privileges of the Series A
Preferred or the Series
A-4
11
B Preferred, or (b) create, authorize, issue or increase the authorized or
issued amount of any class or series of any equity securities of the Company,
or any warrants, options or other rights convertible or exchangeable into any
class or series of any equity securities of the Company, ranking prior to the
Series A Preferred as to dividend rights, redemption rights and rights on
liquidation, winding-up or dissolution of the Company.
(b) The creation or the issuance of Parity Stock or Junior Stock with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding-up, shall not be considered to be an
adverse change requiring a vote of the holders of the Series A Preferred and
the Series B Preferred.
(c) The number of directors which shall constitute the full Board of
Directors of the Company shall be fixed from time to time by the Board of
Directors. At the time of their election, one of such directors, shall be
designated as the Series A Preferred Stock Director. The holders of the Series
A Preferred, voting as a separate class, shall be entitled to elect the Series
A Preferred Stock Director. The initial Series A Preferred Stock Director
shall be D. Kennedy Fesenmyer. Unless otherwise provided herein, the holders
of the Series A Preferred shall not be entitled to vote in the election of the
other directors, or any other matters.
So long as any shares of the Series A Preferred remain outstanding, in the
event of a failure of the Company to pay three consecutive semi-annual dividend
payments pursuant to Section 3 hereof ( "Event of Default"), then the holders
of the Series A Preferred, voting as a separate class, shall be entitled to
elect one additional director, who shall be an additional director to the then
existing Board of Directors. When the Event of Default is cured, the holders
of the Series A Preferred shall be divested of such special voting power for
one additional director, but always subject to the same provisions for the
vesting of such special voting power in such holders in case of any future
Event of Default. Upon termination of such special voting power as provided
above, the one additional director shall automatically cease to be a director
and the term of office of such additional director shall terminate. Upon the
written request of the holders of not less than 25% of the Series A Preferred
outstanding at the time of such request, addressed to the Secretary at the
principal business office of the Company, the Secretary shall call a meeting of
the holders of the Series A Preferred for the election of such additional
director, at which meeting the holders of the Series A Preferred shall vote as
a separate class. Such meeting shall be held on a date not less than ten nor
more than sixty days after the date of such request, upon notice similar to
that provided in the bylaws of the Company for a special meeting of
shareholders. The holders of a majority of the Series A Preferred present at
such meeting in person or by proxy shall be entitled to elect the additional
director provided for herein.
7. ADDITIONAL RESTRICTIONS:
(a) So long as any shares of Series A Preferred remain outstanding, the
Company shall not, without the vote or written consent by the holders of a
majority of the then outstanding shares of the Series A Preferred, voting as a
single class, and will not permit any of its subsidiaries
A-5
12
to affirmatively create or grant any pledge, security interest, mortgage, deed
of trust or other similar encumbrance on or with respect to any real estate of
the company which was the real estate of the Lobdell Emery Corporation as of
November 14, 1996.
(b) No holder of Preferred Stock shall transfer, sell or assign any such
Preferred Stock prior to February 1, 1999, except transfers or assignments to
an inter vivos trust or by bequest. After February 1, 1999, each holder of
Preferred Stock who proposes to sell, transfer or assign (other than a transfer
to an inter vivos trust or transfer by gift or bequest) any Preferred Stock
shall first give written notice to the Company of the proposed transfer,
stating the name of the proposed purchaser, the number of shares to be
transferred, the price per share, and all of the other material terms of the
proposed transfer. For thirty days after such notice, the Company shall have a
first option to purchase all (but not less than all) of the Preferred Stock to
be transferred, at the price of the proposed transfer and on the other material
terms of the proposed transfer. If the Company fails to purchase all such
shares, they may be transferred to the purchaser designated in such notice, at
the price and on the terms described in such notice, within fifteen days after
the expiration of the thirty-day option period. After the expiration of such
fifteen-day period, no Preferred Stock may be transferred to any person without
again complying with this Section 7(b). The closing of any sale of Preferred
Stock to the Company pursuant to this Section 7(b) shall take place at the
principal business office of the Company. Upon tender of the purchase price,
the holder of such Preferred Stock shall endorse and deliver to the Company all
certificates representing the purchased shares, together with all other
documents that may be necessary or desirable to accomplish a complete transfer
of such shares. If such holder fails to deliver any certificate, notice, or
other document required by this Section 7(b), the Company may set aside the
purchase price, to be held for such holder without interest and without any
fiduciary obligation, and such holder shall have no further rights with respect
to the shares to be purchased, including but not limited to the right to
receive any distribution with respect to such shares.
8. STOCK SPLITS, COMBINATIONS, ETC.:
In the event of any split, reverse split or combination of the Series A or
Series B Preferred, or any distribution with respect to the Series A or Series
B Preferred, of additional shares of Series A or Series B Preferred, the
dividend rate provided in Section 3, the amount payable upon the liquidation,
dissolution or winding up of the Company pursuant to Section 5 and the
Redemption Price payable pursuant to Section 4 shall be equitably adjusted by
the Board of Directors to reflect the number of shares of Series A or Series B
Preferred, as applicable, outstanding immediately after such event as a
percentage of the number of shares of Series A or Series B Preferred
outstanding immediately after the last such prior adjustment, or of the number
of shares of Series A Preferred and Series B Preferred originally issued, if
there has been no such prior adjustment.
9. FINANCIAL STATEMENTS:
(a) As soon as practicable, and in any event within 120 days after the
close of each fiscal year of the Company, the Company shall mail or otherwise
furnish to the holders of the Series
A-6
13
A and Series B Preferred consolidated statements of income, retained earnings
and changes in financial position of the Company and its consolidated
subsidiaries for such fiscal year and a consolidated balance sheet of the
Company and its consolidated subsidiaries as of the close of such fiscal year,
and notes to each, all in reasonable detail, setting forth in comparative form
the corresponding figures for the preceding fiscal year, prepared in accordance
with generally accepted accounting principles and certified by independent
certified public accountants of recognized standing selected by the Company.
(b) As soon as practicable, and in any event within 45 days after the
close of each of the first three quarters of each fiscal year of the Company,
the Company shall mail or otherwise furnish to the holders of the Series A and
Series B Preferred unaudited consolidated statements of income, retained
earnings and changes in financial position of the Company and its consolidated
subsidiaries for such fiscal quarter and for the period from the beginning of
such fiscal year to the end of such fiscal quarter, and an unaudited
consolidated balance sheet of the Company and its consolidated subsidiaries as
of the close of such fiscal quarter, and notes to each, all in reasonable
detail, setting forth in comparative form the corresponding figures for the
same period or as of the same date during the preceding fiscal quarter, and
certified by the chief financial officer of the Company as presenting fairly
the financial position of the Company and its consolidated subsidiaries as of
the end of such fiscal quarter and the results of their operations and the
changes in their financial position for such fiscal quarter, in conformity with
generally accepted accounting principles but subject to year-end audit
adjustments.
A-7
14
RETURN DOCUMENT TO:
Gerald T. Lievois
Dykema Gossett PLLC
1577 North Woodward Avenue
Suite 300
Bloomfield Hills, Michigan 48304
NAME OF ORGANIZATION REMITTING FEES:
Dykema Gossett PLLC
PREPARER'S NAME AND BUSINESS TELEPHONE NUMBER:
Gerald T. Lievois
(810) 540-0866