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EXHIBIT 3
TITAN INTERNATIONAL, INC.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
ARTICLE I
Name
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The name of the corporation is: TITAN INTERNATIONAL, INC. (the
"Corporation").
ARTICLE II
Purpose
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The purpose or purposes for which the Corporation is organized are to
engage in the transaction of any or all lawful businesses for which corporations
may be incorporated under the Illinois Business Corporation Act of 1983, as
amended (the "1983 Act").
ARTICLE III
Authorized Shares
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Paragraph 1. Number and Class. The number of shares which the
Corporation is authorized to issue, itemized by class, series and par value, if
any, is:
Class Par Value Number of Shares Authorized
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Common Stock without par value 60,000,000 shares
Preferred Stock without par value 4,000,000 shares
Paragraph 2. Rights, Preferences and Limitations. The preferences,
qualifications, limitations, restrictions and the special or relative rights in
respect of the shares of each class are:
A. Subject to the preferences accorded the holders of Preferred
Stock pursuant to these Articles of Incorporation (the "Articles") or action of
the Board of Directors of the Corporation (the "Board") taken with respect to
such preferences, holders of Common Stock are entitled to receive such dividends
as may be declared by the Board from time to time and, in the event of any
liquidation, dissolution or winding up of the Corporation, the holders of Common
Stock will be entitled to receive pro rata all of the remaining assets of the
Corporation available for distribution. Each issued and outstanding share of
Common Stock is entitled to one vote.
B. The Board is authorized from time to time to issue shares of
Preferred Stock in one or more series, each series to bear a distinctive
designation and to have
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such relative rights, powers, preferences, limitations and restrictions as shall
be stated in the resolution or resolutions of the Board providing for the
issuance thereof. Such resolutions, when filed, shall constitute amendments to
these Articles.
Paragraph 3. No Cumulative Voting. No holder of any shares of any class
of stock of this Corporation shall be entitled to cumulative voting rights in
the election of the Board under any circumstances.
Paragraph 4. Series A Convertible Preferred Stock. By resolution of the
Board of Directors adopted on July 9, 1994, and pursuant to the authority
expressly granted to and vested in the Board of Directors by virtue of Article
III, Paragraph 2 of these Articles, the Board of Directors created a series of
Preferred Stock having the following designations, powers, conversions,
privileges, preferences and other special rights and qualifications, limitations
or restrictions thereof:
A. Designation and Amount. The shares of such series shall be
designated as Series A Convertible Preferred Stock no par value per share (the
"Series A Preferred") and the number of shares constituting such series shall be
1,000,000.
B. Voting Rights. The holders of Series A Preferred shall not be
entitled to vote on any matters submitted to the stockholders of the
Corporation, except as required by applicable law.
C. Dividends.
(1) The holders of each share of Series A Preferred shall have
the right to receive, out of any funds or property legally available therefor,
noncumulative dividends at the same rate and at the same time as any dividends
declared on each share of the Common Stock of the Corporation as presently
constituted, when, as and if declared by the Board of Directors; provided,
however; that if any dividends payable in Common Stock are declared or any other
Capital Event (as defined in Paragraph E(3)(a)) shall occur, then the provisions
hereof relating to anti-dilution shall govern and no dividend or other
distribution shall be made to the holders of Series A Preferred.
(2) If the Corporation at any time shall make a distribution
of its assets to the holders of its Common Stock as a dividend in liquidation or
by way of return of capital or other than as a dividend payable under Paragraph
C(1) above or a Liquidation Event under Paragraph D below, the holders of each
share of Series A Preferred shall be entitled to receive such a distribution at
the same rate and at the same time as paid or distributed on each share of
Common Stock.
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D. Liquidation Preference.
(1) Upon the dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary (a "Liquidation
Event"), the holders of shares of Series A Preferred shall be entitled to
receive, prior and in preference to any distribution of any of the assets or
surplus funds of the Corporation to the holders of Common Stock or any class or
series of preferred stock which ranks inferior to Series A Preferred with
respect to rights on the occurrence of a Liquidation Event by reason of their
respective ownership thereof, the amount of $7.50 per share, as adjusted for any
stock dividends, combinations, stock splits, recapitalizations, reorganizations
or other transactions affecting the shares of capital stock of the Corporation
effected without the receipt of consideration by the Corporation (the
"Liquidation Preference"). If upon any Liquidation Event the amounts available
for distribution are insufficient to pay in full the Liquidation Preference to
which the holders of the Series A Preferred are entitled, hen such distributions
shall be made to the holders of Series A Preferred on a pro-rata basis.
(2) Notwithstanding anything to the contrary contained in
subparagraph (1) of this Paragraph D, if the amount that would be payable to the
holders of the Series A Preferred in connection with such Liquidation Event if
such holders had converted such Series A Preferred into the maximum number of
shares of Common Stock into which such Series A Preferred would be convertible
if it automatically converted at the time of the Liquidation Event would be
greater than the Liquidation Preference, then the holders of the Series A
Preferred shall be entitled to receive, as and when received by the holders of
the Common Stock, such alternative liquidation amount in lieu of the Liquidation
Preference.
(3) For purposes of this Paragraph D only, a sale of all or
substantially all of the assets of the Corporation, shall be treated as a
Liquidation Event and shall entitle the holders of Series A Preferred to receive
at the closing of such sale in cash, securities or other property the greater of
the amounts specified in subparagraphs (1) and (2) above.
(4) Whenever the distribution provided for in this Paragraph D
shall be payable in securities or property other than cash, the value of such
distribution shall be the fair market value of such securities or property as
determined in good faith by the Board of Directors of the Corporation by any
reasonable method.
E. Conversion. The holders of Series A Preferred shall have no
conversion rights except as set forth below:
(1) Conversion Rights.
(a) Automatic Conversion. Each share of Series A Preferred
shall on the sixth anniversary of the issuance of such share be automatically
converted, without the payment of any additional consideration, into such number
of fully paid and
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nonassessable shares of Common Stock (all of which shall be registered under the
Securities Act of 1933, as amended and all applicable state securities laws on
or prior to issuance) as is determined by dividing $7.50 by the Series A
Conversion Price applicable to such share, determined as hereinafter provided,
in effect on such sixth anniversary. The price at which the shares of Common
Stock shall be deliverable upon conversion of shares of Series A Preferred (as
such price may be adjusted from time to time as provided herein, the "Series A
Conversion Price") shall initially be $60.00 per share of Common Stock. Such
initial Series A Conversion Price shall be adjusted as hereinafter provided.
(2) Mechanics of Conversion.
(a) Before any holder of Series A Preferred shall be
entitled to convert the same into shares of Common Stock, he or she shall
surrender the certificate or certificates therefor, duly endorsed, at the office
of the Corporation or any transfer agent for such stock, and shall give written
notice to the Corporation at such office setting forth the name or names in
which such holder wishes the certificate or certificates for shares of Common
Stock to be issued. The Corporation shall, as soon as practicable thereafter,
issue and deliver to such holder of Series A Preferred, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled. Such certificate or certificates for Common Stock, when issued,
shall represent shares of Common Stock which have been duly authorized, fully
paid and non-assessable.
(b) Notwithstanding any delay or failure by a holder of
Series A Preferred to deliver any certificates for conversion on or after the
sixth anniversary of issuance, such conversion shall be deemed to have been made
as of such sixth anniversary. As of the sixth anniversary of the date of
issuance of any such shares of Series A Preferred then outstanding, such
outstanding shares of Series A Preferred shall be deemed canceled and the
holders thereof shall be treated for all purposes as record holders of the
shares of Common Stock into which such shares of Series A Preferred are
convertible as of such date.
(3) Adjustments to Series A Conversion Price.
(a) Special Definitions. For purposes of this subparagraph
(3), the following definitions shall apply:
(i) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued or pursuant to Paragraph E(3)(c) (or deemed to be
issued) by the Corporation after the Original Issue Date other than Excluded
Securities.
(ii) "Capital Event" shall mean any event or
occurrence contemplated under Paragraph E(3)(f) or E(4).
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(iii) "Common Stock" shall mean the Common Stock, no
par value of the Corporation as constituted on the date of issuance of any
Series A Preferred.
(iv) "Convertible Securities" shall mean any evidences
of indebtedness, warrants, Options or other rights or securities (other than the
Series A Preferred and the Original Warrant) convertible into or exchangeable or
exercisable for, Common Stock or other Convertible Securities.
(v) "Excluded Securities" shall mean all shares of
Common Stock issued or issuable (or deemed to be issued pursuant to Paragraph
E(3)(c)) upon (A) the sale, transfer or exercise of the Original Warrant, (B) to
officers, directors or employees of the Corporation pursuant to stock option,
warrant or stock purchase plans or agreements which plans and/or agreements have
been approved by the Board of Directors of the Corporation prior to the Original
Issue Date, (C) upon conversion of The Corporation 4.75% Subordinated
Convertible Debentures due 2000 in the amount of $103,500,000.00, (D) the Dyneer
Earnout Shares as defined and provided for in the Exchange Agreement dated
September 21, 1993 between the Dyneer Shareholders and the Corporation, or (E)
for which adjustment of the Series A Conversion Price has previously been made
pursuant to Paragraph E(3)(f).
(vi) "Options" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(vii) "Original Issue Date" shall mean August 11,
1994.
(viii) "Original Warrant" shall mean the warrant to
purchase Common Stock of the Corporation at an initial exercise price of $55.00
per share (subject to adjustment as provided therein) issued to Pirelli
Armstrong Tire Corporation as of the Original Issue Date.
(b) No Adjustment of Conversion Price. Any provision
herein to the contrary notwithstanding, no adjustment in the Series A Conversion
Price shall be made in respect of the issuance of Additional Shares of Common
Stock unless the consideration per share (determined in accordance with this
Paragraph E) for an Additional Share of Common Stock issued or deemed to be
issued by the Corporation is less than the Series A Conversion Price for such
series of Series A Preferred Stock in effect on the date of, and immediately
prior to, such issue.
(c) Deemed Issue of Additional Shares of Common Stock. In
the event that the Corporation at any time or from time to time after the
Original Issue Date shall issue any Options or Convertible Securities or shall
fix a record date for the
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determination of holders of any class of securities then entitled to receive any
such Options or Convertible Securities, then the maximum number of shares (as
set forth in the instrument relating thereto without regard to any provisions
contained therein designed to protect against dilution) of Common Stock issuable
upon the exercise of such Options or, in the case of Convertible Securities and
Options therefor, the conversion or exchange of such Convertible Securities or
Options, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that in any such case as
to which Additional Shares of Common Stock shall be deemed to have been issued:
(i) no further adjustments in the Series A Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of Options or conversion or exchange of
such Convertible Securities;
(ii) if such Options or other Convertible Securities
by their terms provide, with the passage of time or otherwise, for any increase
or decrease in the consideration payable to the Corporation, or decrease or
increase in the number of shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof, the Series A Conversion Price computed upon the
original issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon any such
increase or decrease becoming effective, be recomputed to reflect such increase
or decrease insofar as it affects such Options or the rights of conversion or
exchange under such other Convertible Securities;
(iii) upon the expiration of any such Options or any
rights of conversion or exchange under such Convertible Securities which shall
not have been exercised, the Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto) and any
subsequent adjustments based thereon, shall upon such expiration, be recomputed
as if in the case of Convertible Securities or Options for Common Stock the only
Additional Shares of Common Stock issued were the shares of Common Stock, if
any, actually issued upon the exercise of such Options or the conversion or
exchange of such Convertible Securities and the consideration received therefor
was the consideration actually received by the Corporation for the issue of all
such Options, whether or not exercised, plus the consideration actually received
for the issue of all such Convertible Securities which were actually converted
or exchanged, plus the additional consideration, if any, actually received by
the Corporation upon such conversion or exchange.
(d) Determination of Consideration. For purposes of this
subparagraph (c), the consideration received by the Corporation for the issuance
of any Additional Shares of Common Stock shall be computed as follows:
(i) Cash and Property. Such consideration shall:
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(A) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Corporation excluding
amounts paid or payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other
than cash, be computed at the fair market value thereof at the time of receipt
of such property, as determined in good faith by the Board of Directors of the
Corporation by any reasonable method;
(C) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors of the Corporation by any
reasonable method.
(ii) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to Paragraph E(3)(c), relating
to Options and Convertible Securities shall be determined by dividing:
(A) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein designed to protect against dilution) payable
to the Corporation upon the exercise of such Options or the conversion or
exchange of such Convertible Securities for the maximum number of shares, or in
the case of Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such Convertible
Securities, by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments relating thereto, without regard to any
provision contained therein designed to protect against dilution) issuable upon
the exercise of such Options or conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible Securities, the exercise
of such Options for Convertible Securities and the conversion or exchange of
such Convertible Securities.
(e) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event that the Corporation at a time
after the Original Issue Date shall issue Additional Shares of Common Stock
(including Additional Shares of Common Stock deemed issued pursuant to
subparagraph (3)(c)) without consideration or for a consideration per share less
than the Series A Conversion Price in effect on the date of and immediately
prior to such issuance, then and in such event, the Series A Conversion Price
shall be reduced, concurrently with such issuance, to a price (calculated to the
nearest cent) determined
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by multiplying such Series A Conversion Price by a fraction, (A) the numerator
of which shall be (1) the number of shares of Common Stock outstanding
immediately prior to such issuance plus (2) the number of shares of Common
Stock, which the aggregate consideration received by the Corporation for the
total number of Additional Shares of Common Stock so issued would purchase at
such Series A Conversion Price in effect immediately prior to such issuance; and
(B) the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance plus the number of Additional
Shares of Common Stock so issued.
(f) Adjustments to Conversion Prices for Stock Dividends
and for Combinations or Subdivisions of Common Stock. In the event that the
Corporation at any time or from time to time after the Original Issue Date shall
declare or pay, without consideration, any dividend on the Common Stock payable
in Common Stock or in any right to acquire Common Stock for no consideration, or
shall effect a subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock by stock split, reclassification or
otherwise than by payment of a dividend in Common Stock or in any right to
acquire Common Stock, or in the event the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then the Series A Conversion Price in
effect immediately prior to such event shall, concurrently with the
effectiveness of such event, be proportionately decreased or increased, as
appropriate. In the event that the Corporation shall declare or pay, without
consideration, any dividend on the Common Stock payable in any right to acquire
Common Stock for no consideration, then the Corporation shall be deemed to have
made a dividend payable in Common Stock in an amount of shares equal to the
maximum number of shares issuable upon exercise of such rights to acquire Common
Stock.
(4) Adjustments for Reclassification, Consolidation, Merger
and Reorganization. If the Common Stock issuable upon conversion of Series A
Preferred shall be changed into the same or a different number of shares of any
other class or classes of stock or securities, and or other property or the
right to receive other property, whether by capital reorganization,
reclassification, consolidation, merger or otherwise (other than a subdivision
or combination of shares provided for in Paragraph E(3)(f) above or a merger or
other reorganization in which the Corporation is the surviving entity), the
Series A Conversion Price then in effect shall, concurrently with the
effectiveness of such reorganization, consolidation, merger or reclassification,
be proportionately adjusted so that the Series A Preferred shall thereafter be
convertible into, in lieu of the number of shares of Common Stock which the
holders would otherwise have been entitled to receive, the kind and amount of
such other class or classes of stock or securities or other property or rights
to receive property equivalent to the number of shares of such other class or
classes of stock or securities or other property or rights to receive property
that the holder of Series A Preferred would have received as a result of
conversion of the Series A Preferred immediately before the change and, in such
case appropriate adjustment shall be made in the application of the provisions
of Paragraph E(3) hereof with respect to the rights and interest thereafter of
the holders of the Series A Preferred, to the end that
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the provisions set forth in this Paragraph E(4) shall thereafter be applicable,
as nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon conversion of the Series A Preferred (and
all of such shares of such other class or classes or stock or securities into
which the Series A Preferred is thereafter convertible shall be subject to, and
entitled to the benefits of, all of the provisions of this Paragraph E on the
same basis as the Common Stock which the holders would otherwise have been
entitled to receive).
(5) No Impairment. The Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed under this Paragraph E by the
Corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Paragraph E and in the taking of all such action as
may be necessary or appropriate in order to protect the conversion rights of the
holders of Series A Preferred against impairment.
(6) Certificates as to Adjustments. Upon the occurrence of
each adjustment or readjustment of the Series A Conversion Price, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred a certificate executed by the Corporation's Chief
Financial Officer setting forth such adjustment or readjustment and showing in
reasonable detail the facts upon which such adjustment or readjustment is based.
(7) Issue Taxes. The Corporation shall pay any and all issue
and other taxes that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of Series A Preferred pursuant hereto.
(8) Reservation of Stock. The Corporation shall at all times
reserve, cause to be approved for listing on notice of issuance on the principal
stock exchange on which the Common Stock is then listed, and keep available out
of its authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of Series A Preferred, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Series A Preferred.
(9) Fractional Shares. No fractional shares shall be issued
upon the conversion of any share or shares of Series A Preferred. All shares of
Common Stock (including fractions thereof) issuable upon conversion of each
share of Series A Preferred being simultaneously converted by any holder shall
be aggregated for purposes of determining whether the conversion would result in
the issuance of any fractional shares. If, after such aggregation, the
conversion would result in issuance of a fraction of a share of Common Stock,
the Corporation shall, in lieu of issuing any fractional share, issue to the
holder one share with respect to such fractional share.
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ARTICLE IV
Indemnification
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Directors and officers of the Corporation shall be indemnified in
connection with any actual or threatened action or proceeding (including civil,
criminal, administrative or investigative proceedings) arising out of their
service to the Corporation or to another organization at the Corporation's
request and shall be paid expenses incurred in defending any such proceeding in
advance of its final disposition to the fullest extent permitted by law. Persons
who are not directors or officers of the Corporation may be similarly
indemnified in respect of such service to the extent authorized at any time by
the Board or the bylaws of the Corporation. The provisions of this Article shall
be applicable to actions or proceedings commenced after the adoption hereof,
whether arising from acts or omissions occurring before or after the adoption
hereof, and to persons who have ceased to be directors, officers or employees,
and shall inure to the benefit of their heirs, executors and administrators. The
right to indemnification and advancement of expenses conferred hereunder shall
be a contract right which may not be modified retroactively without the written
consent of the director or officer and shall not be deemed exclusive of any
other rights to indemnification or advancement of expenses such person may have
or to which such person may be entitled.
If a claim under this Article is not paid in full by the Corporation
within thirty days after a written claim has been received by the Corporation,
the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful, in whole or in part, in
any such suit or in a suit brought by the Corporation to recover advances, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such claim. In any action brought by the indemnitee to enforce a right
hereunder (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking has been tendered to the Corporation), it shall be a
defense that, and in any action brought by the Corporation to recover advances
the Corporation shall be entitled to recover such advances if, the indemnitee
has not met the applicable standard of conduct set forth in the 1983 Act.
Neither the failure of the Corporation (including its Board, a committee of its
Board, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the 1983 Act, nor an actual
determination by the Corporation (including its Board, a committee of its Board,
independent legal counsel, or its shareholders) that the indemnitee has not met
such applicable standard or conduct, shall be a defense to any action brought by
the indemnitee or create a presumption that the indemnitee has not met the
applicable standard of conduct. In any action brought by the indemnitee to
enforce a right hereunder or by the Corporation to recover payments by the
Corporation of advances, the burden of proof shall be on the Corporation.
ARTICLE V
Director Liability
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No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director provided, however, that this Article does not eliminate or
limit the liability of a director (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) under Section 8.65 of the 1983 Act, or (iv) for any transaction from
which the director derived an improper personal benefit. This Article shall not
eliminate or limit the liability of a director for any act or omission occurring
prior to the date on which this Article becomes effective. If after this Article
becomes effective, the 1983 Act is amended to authorize the broader elimination
or limitation of liability for a director, then in addition to the foregoing
elimination of liability, upon the effective date of such amendment, the
liability of a director shall without further act also be eliminated and limited
to such broader extent to the fullest extent not prohibited by the 1983 Act as
amended. The provisions of this Article shall be deemed to be a contract with
each director of the Corporation who serves as such at any time while such
provisions are in effect, and each such director shall be deemed to be serving
as much in reliance on the provisions of this Article. No repeal or amendment of
these Articles shall adversely affect any right or any elimination or limitation
of liability of a director existing at the time of the repeal or amendment.
ARTICLE VI
Amendments
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Except as otherwise expressly set forth in these Articles, or as
specifically required by law, any amendment to the Articles requiring approval
of shareholders shall be adopted upon receiving the affirmative vote of the
holders of a majority of the outstanding shares entitled to vote on the
amendment and a majority of the outstanding shares of each class or series of
shares, if any, entitled to vote as a class on the amendment. Notwithstanding
the foregoing, an amendment to the Articles to reduce the current requirement
under the 1983 Act that the holders of two-thirds of outstanding shares,
including the holders of two-thirds of any class or series, which is entitled to
a class vote on such transaction, approve certain mergers, consolidations,
exchange transactions, or sales by the Corporation of all or substantially all
of its assets would, itself, require the affirmative vote of holders of
two-thirds of any such class or series.
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