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EXHIBIT 3.1
TWENTY-SEVENTH AMENDED ARTICLES OF INCORPORATION
OF
COOPER INDUSTRIES, INC.
ARTICLE I
NAME
The name of the Corporation shall be COOPER INDUSTRIES, INC.
ARTICLE II
PRINCIPAL OFFICE IN OHIO
The place in Ohio where the principal office of the Corporation is to be
located as provided in the Ohio Revised Code, Section 1701.04, is Cleveland in
Cuyahoga County.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code, as now in effect or hereafter
amended.
ARTICLE IV
AUTHORIZED SHARES
The authorized number of shares of the Corporation shall consist of
1,340,750 shares of Preferred Stock with no par value (hereinafter called
"Preferred Stock"), 2,821,079 shares of Preferred Stock par value $1.00 per
share (hereinafter called "Preferred Stock ($1 par)"), 10,000,000 shares of
Preferred Stock par value $2.00 per share (hereinafter called "$2.00 Par
Preferred Stock") and 250,000,000 shares of Common Stock par value $5.00 per
share (hereinafter called "Common Stock"). No holder of shares of any class of
stock of the Corporation shall as such holder have any preemptive right to
purchase shares of any class of stock of the Corporation or shares or other
securities convertible into or exchangeable for or carrying rights or options
to purchase shares of any class of stock of the Corporation, whether such class
of stock, shares or other securities are now or hereafter authorized, which at
any time may be proposed to be issued by the Corporation or subjected to rights
or options to purchase granted by the Corporation. Except as otherwise
specifically provided in this Article IV, any action to be taken by the
shareholders of the Corporation under Sections 1701.01 to 1701.98, inclusive,
of the Ohio Revised Code which would require the affirmative vote of two-thirds
of the voting power unless otherwise provided in the Corporation's Articles of
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Incorporation, may be taken by the affirmative vote of a majority of the voting
power of the Corporation.
A. TERMS OF PREFERRED STOCK
The Shares of Preferred Stock shall have the following express terms:
SECTION 4.1A--Issue in Series--Terms to be Fixed by Directors--The
Preferred Stock may be issued from time to time in one or more series. All
shares of Preferred Stock shall be of equal rank and shall be identical, except
in respect of the matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of each series shall be identical with all
other shares of such series, except as to the date from which dividends are
cumulative. Subject to the provisions of Sections 4.2A to 4.8A, both
inclusive, which provisions shall apply to all Preferred Stock, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series prior to the issuance thereof to
fix:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
(b) the number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of the
series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in the
event of any liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which such
conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6A(b) and 4.6A(c)) on the issuance of shares of any class or series.
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The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect to
each such series, the matters described in clauses (a) to (i), both inclusive,
of this Section 4.1A.
SECTION 4.2A--Dividends--The holders of Preferred Stock of each series,
in preference to the holders of Common Stock and of any other class of shares
ranking junior to the Preferred Stock, shall be entitled to receive out of any
funds legally available and when and as declared by the Board of Directors
dividends in cash at the rate for such series fixed in accordance with the
provisions of Section 4.1A and no more, payable quarterly on the dates fixed
for such series. Such dividends shall be cumulative, in the case of shares of
each particular series, from and after the date or dates fixed with respect to
such series. No dividends may be paid upon or declared or set apart for any of
the Preferred Stock for any quarterly dividend period unless at the same time a
like proportionate dividend for the same quarterly dividend period, ratable in
proportion to the respective annual dividend rates fixed therefor, shall be
paid upon or declared or set apart for all Preferred Stock of all series then
issued and outstanding and entitled to receive such dividend.
SECTION 4.3A--Dividends on Junior Stock--In no event so long as any
Preferred Stock shall be outstanding shall any dividends, except a dividend
payable in Common Stock or other shares ranking junior to the Preferred Stock,
be paid or declared or any distribution be made on the Common Stock or any
other shares ranking junior to the Preferred Stock, nor shall any Common Stock
or any other shares ranking junior to the Preferred Stock be purchased, retired
or otherwise acquired by the Corporation (except out of the proceeds of the
sale of Common Stock or other shares ranking junior to the Preferred Stock):
(a) unless all accrued and unpaid dividends on Preferred Stock,
including the full dividends for the current quarterly dividend period,
shall have been declared and paid or a sum sufficient for payment
thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Preferred Stock of any series from any sinking fund
provided for shares of such series in accordance with the provisions of
Section 4.1A.
SECTION 4.4A--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6A(b)(iii), the Corporation may from
time to time redeem all or any part of the Preferred Stock of any series at the
time outstanding (i) at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the provisions of
Section 4.1A or (ii) in fulfillment of the requirements of any sinking fund
provided for shares of such series at the applicable sinking fund redemption
price, fixed in accordance with the provisions of Section 4.1A, together in
each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the Preferred Stock to be redeemed at their respective
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addresses then appearing on the books of the Corporation, not less than thirty
(30) days nor more than sixty (60) days prior to the date fixed for such
redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Preferred Stock to be redeemed with any bank or trust company, having
capital and surplus of more than Five Million Dollars ($5,000,000), named in
such notice, directed to be paid to the respective holders of the shares of
Preferred Stock so to be redeemed, in amounts equal to the redemption price of
all shares of Preferred Stock so to be redeemed, on surrender of the stock
certificate or certificates held by such holders, and upon the making of such
deposit such holders shall cease to be shareholders with respect to such
shares, and after such notice shall have been given and such deposit shall have
been made such holders shall have no interest in or claim against the
Corporation with respect to such shares except only to receive such money from
such bank or trust company without interest or the right to exercise, before
the redemption date, any unexpired privileges of conversion. In case less
than all of the outstanding shares of Preferred Stock are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed in such manner as
shall be prescribed by its Board of Directors. If the holders of shares of
Preferred Stock which shall have been called for redemption shall not, within
ten years after such deposit, claim the amount deposited for the redemption
thereof, any such bank or trust company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such bank or trust company
and the Corporation shall be relieved of all responsibility in respect thereof
and to such holders.
(c) Any shares of Preferred Stock which are redeemed by the Corporation
pursuant to the provisions of this Section 4.4A and any shares of Preferred
Stock which are purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series and any shares of Preferred
Stock which are converted in accordance with the express terms thereof shall be
cancelled and not reissued. Any shares of Preferred Stock otherwise acquired
by the Corporation shall resume the status of authorized and unissued shares
of Preferred Stock without serial designation.
SECTION 4.5A--Liquidation--(a) The holders of Preferred Stock of any
series shall, in case of any liquidation, dissolution or winding up of the
affairs of the Corporation be entitled to receive in full out of the assets of
the Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the Preferred Stock the amounts fixed with respect to shares of such
series in accordance with Section 4.1A. In case the net assets of the
Corporation legally available therefor are insufficient to permit the payment
upon all outstanding shares of Preferred Stock of the full preferential amount
to which they are respectively entitled, then such net assets shall be
distributed ratably upon outstanding shares of Preferred Stock in proportion to
the full preferential amount to which each such share is entitled. After
payment to holders of Preferred Stock of the full preferential amounts as
aforesaid, holders of Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
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(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5A.
SECTION 4.6A-- Voting--(a) The holders of Preferred Stock shall be
entitled to one vote for each share of such stock upon all matters presented to
the shareholders; and, except as otherwise provided herein or required by law,
the holders of Preferred Stock and the holders of Common Stock shall vote
together as one class on all matters. If, and so often as, the Corporation
shall be in default in the payment of six (6) full quarterly dividends (whether
or not consecutive) on any series of Preferred Stock at the time outstanding,
whether or not earned or declared, the holders of Preferred Stock of all
series, voting separately as a class and in addition to all other rights to
vote for Directors, shall be entitled to elect, as herein provided, two (2)
members of the Board of Directors of the Corporation who shall be in addition
to the regular members of the Board of Directors elected by the common
shareholders pursuant to the Corporation's Code of Regulations; provided,
however, that the holders of shares of Preferred Stock shall not have or
exercise such special class voting rights except at meetings of the
shareholders for the election of Directors at which the holders of not less
than thirty-five percent (35%) of the outstanding shares of Preferred Stock of
all series then outstanding are present in person or by proxy; and provided
further that the special class voting rights provided for herein when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on the Preferred Stock of all series then outstanding shall have been
paid, whereupon the number of persons constituting the Board of Directors
shall be reduced by the number of Directors then in office elected pursuant to
this Section, the term of office of said Directors so elected shall end, and
the holders of Preferred Stock shall be divested of their special class voting
rights in respect of subsequent elections of Directors, subject to the
revesting of such special class voting rights in the event hereinabove
specified in this paragraph. A vacancy in the class of Directors elected
pursuant to this Section shall be filled by the remaining Director of the
class and the Code of Regulations in effect at the time of filing of these
terms and provisions is hereby amended to the extent it is inconsistent
herewith. In the event of default entitling the holders of Preferred Stock to
elect two (2) Directors as above specified, a special meeting of the
shareholders for the purpose of electing such Directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least ten percent (10%) of the shares of Preferred
Stock of all series at the time outstanding, and notice thereof shall be given
in the same manner as that required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be required to call such
special meeting if the annual meeting of shareholders shall be held within
ninety (90) days after the date of receipt of the foregoing written request
from the holders of Preferred Stock. At any meeting at which the holders of
Preferred Stock shall be entitled to elect Directors, the holders of
thirty-five percent (35%) of the then outstanding shares of Preferred Stock of
all series, present in person or by proxy, shall be sufficient to constitute a
quorum, and the vote of the holders of a majority of such shares so present at
any such meeting at which there shall be such a quorum
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shall be sufficient to elect the members of the Board of Directors which the
holders of Preferred Stock are entitled to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds (2/3) of
the shares of Preferred Stock at the time outstanding, given in person or by
proxy at a meeting called for the purpose at which the holders of Preferred
Stock shall vote separately as a class, shall be necessary to effect any one or
more of the following (but so far as the holders of Preferred Stock are
concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the provisions
of the Amended Articles of Incorporation or of the Regulations of the
Corporation which affects adversely the voting powers, rights or
preferences of the holders of Preferred Stock; provided, however, that,
for the purposes of this clause only, neither the amendment of the
Amended Articles of Incorporation so as to authorize or create, or to
increase the authorized or outstanding amount of, Preferred Stock or of
any shares of any class ranking on a parity with or junior to the
Preferred Stock, nor the amendment of the provisions of the Regulations
so as to increase the number of Directors of the Corporation shall be
deemed to affect adversely the voting powers, rights or preferences of
the holders of Preferred Stock; and provided further, that if such
amendment, alteration or repeal affects adversely the rights or
preferences of one or more but not all series of Preferred Stock at the
time outstanding, only the affirmative vote of the holders of at least
two-thirds (2/3) of the number of the shares at the time outstanding of
the series so affected shall be required;
(ii) the authorization or creation of, or the increase in the
authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the Preferred
Stock; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Preferred Stock then outstanding
except in accordance with a stock purchase offer made to all holders of
record of Preferred Stock, unless all dividends upon all Preferred Stock
then outstanding for all previous quarterly dividend periods shall have
been declared and paid or funds therefor set apart and all accrued
sinking fund obligations applicable thereto shall have been complied
with.
(c) the affirmative vote of the holders of at least a majority of the
shares of Preferred Stock at the time outstanding, given in person or by proxy
at a meeting called for the purpose at which the holders of Preferred Stock
shall vote separately as a class, shall be necessary to effect any one or more
of the following (but so far as the holders of Preferred Stock are concerned,
such action may be effected with such vote):
(i) The sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation with
or merger into any other corporation unless the corporation resulting
from such consolidation or merger
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will have after such consolidation or merger no class of shares either
authorized or outstanding ranking prior to or on a parity with the
Preferred Stock except the same number of shares ranking prior to or on
a parity with the Preferred Stock and having the same rights and
preferences as the shares of the Corporation authorized and outstanding
immediately preceding such consolidation or merger, and each holder of
Preferred Stock immediately preceding such consolidation or merger
shall receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(ii) The authorization of any shares ranking on a parity with the
Preferred Stock or an increase in the authorized number of shares of
Preferred Stock.
SECTION 4.7A--Preemptive Rights--The holders of Preferred Stock shall
have no preemptive right to purchase or have offered to them for purchase any
shares or other securities of the Corporation, whether now or hereafter
authorized.
SECTION 4.8A--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the Preferred Stock" or "on a parity with the
Preferred Stock", such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality with (as the case
may be), the rights of the holders of Preferred Stock; and whenever reference
is made to shares "ranking junior to the Preferred Stock", such reference shall
mean and include all shares of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends and as to distributions
in the event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation are junior and subordinate to the rights
of the holders of Preferred Stock. The Preferred Stock ($1 par) shall rank on
a parity with the Preferred Stock and the $2.00 Par Preferred Stock.
B. EXPRESS TERMS OF THE SERIES A PARTICIPATING PREFERRED STOCK
SECTION 4.1B--Designation and Amount--The shares of such series shall be
designated as "Series A Participating Preferred Stock" and the number of shares
constituting such series shall initially be 1,340,750, no par value, such
number of shares to be subject to increase or decrease by action of the Board
of Directors.
SECTION 4.2B--Dividends and Distributions--(a) Subject to the prior and
superior rights of the holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Participating Preferred
Stock with respect to dividends, the holders of shares of Series A
Participating Preferred 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 last day of March, June,
September and December in each year (each such date being referred to herein 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 Participating
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Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $10.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of
all noncash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $5.00 per share, of the Corporation (the "Common Stock") 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 Participating Preferred Stock. In the event
the Corporation shall at any time after August 5, 1997 (the "Rights
Declaration Date")(i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Series A Participating
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 shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
concurrently with its declaration of a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per
share of the Series A Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating 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 Participating 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 Participating 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 Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
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which record date shall be no more than thirty (30) days prior to the date
fixed for the payment thereof.
SECTION 4.3B--Voting Rights--The holders of shares of Series A
Participating Preferred Stock shall have voting rights as set forth in Section
4.6A of the Corporation's Articles of Incorporation.
SECTION 4.4B--Certain Restrictions--(a) Whenever quarterly dividends or
other dividends or distributions payable on the Series A Participating
Preferred Stock as provided in Section 4.2B are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Participating Preferred Stock outstanding shall
have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred
Stock;
(ii) declare or pay dividends on 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
Participating Preferred Stock, except dividends paid ratably on the
Series A Participating 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) purchase or otherwise acquire for consideration any shares
of Series A Participating 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 annual dividend rates and
other rights and preferences of the series, shall determine in good
faith will result in fair and equitable treatment to the holders of such
series.
(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 Section
4.4B, purchase or otherwise acquire such shares at such time and in such
manner.
SECTION 4.5B--Reacquired Shares--Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired promptly after the acquisition thereof.
SECTION 4.6B--Liquidation, Dissolution or Winding Up--(a) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Participating Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and unpaid
dividends and
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distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference").
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Participating Preferred Stock then
such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences.
SECTION 4.7B--No Redemption--The shares of Series A Participating
Preferred Stock shall not be redeemable.
SECTION 4.8B--Ranking--The Series A Participating Preferred Stock shall
rank equal to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets.
SECTION 4.9B--Amendment--The Restated Articles of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds (2/3) or more of the outstanding
shares of the Series A Participating Preferred Stock, voting separately as a
class.
SECTION 4.1OB--Fractional Shares--Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating Preferred Stock.
C. TERMS OF PREFERRED STOCK ($1 Par)
The shares of Preferred Stock ($1 par) shall have the following express
terms:
SECTION 4.1C--Issue in Series--Terms to be Fixed by Directors--The
Preferred Stock ($1 par) may be issued from time to time in one or more
series. All shares of Preferred Stock shall be of equal rank and shall be
identical, except in respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of Sections 4.2C to
4.8C, both inclusive, which provisions shall apply to all Preferred Stock ($1
par), the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and with respect to each such series prior to the
issuance thereof to fix:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
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(b) the number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of the
series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in the
event of any liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which such
conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6C(b) and 4.6C(c)) on the issuance of shares of any class or series.
The Board of Directors is authorized to adopt from time to time amendments to
the Articles of Incorporation fixing or changing, with respect to each such
series, the matters described in clauses (a) to (i), both inclusive, of this
Section 4.1C.
SECTION 4.2C--Dividends--The holders of Preferred Stock ($1 par) of each
series, in preference to the holders of Common Stock and of any other class of
shares ranking junior to the Preferred Stock ($1 par), shall be entitled to
receive out of any funds legally available and when and as declared by the
Board of Directors dividends in cash at the rate for such series fixed in
accordance with the provisions of Section 4.1C and no more, payable quarterly
on the dates fixed for such series. Such dividends shall be cumulative, in the
case of shares of each particular series, from and after the date or dates
fixed with respect to such series. No dividends may be paid upon or declared
or set apart for any of the Preferred Stock ($1 par) for any quarterly dividend
period unless at the same time a like proportionate dividend for the same
quarterly dividend period, ratable in proportion to the respective annual
dividend rates fixed therefor, shall be paid upon or declared or set apart for
all Preferred Stock ($1 par) of all series then issued and outstanding and
entitled to receive such dividend.
SECTION 4.3C--Dividends on Junior Stock--In no event so long as any
Preferred Stock ($1 par) shall be outstanding shall any dividends, except a
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dividend payable in Common Stock or other shares ranking junior to the
Preferred Stock ($1 par) be paid or declared or any distribution be made on the
Common Stock or any other shares ranking junior to the Preferred Stock ($1 par)
be purchased, retired or otherwise acquired by the Corporation (except out of
the proceeds of the sale of Common Stock or other shares ranking junior to the
Preferred Stock ($1 par)):
(a) unless all accrued and unpaid dividends on Preferred Stock
($1 par), including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum sufficient
for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Preferred Stock ($1 par) of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 4.1C.
SECTION 4.4C--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6C(b)(iii), the Corporation may from
time to time redeem all or any part of the Preferred Stock ($1 par) of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 4.1C or (ii) fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price, fixed in accordance with the provisions of Section 4.1C,
together in each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of Preferred Stock ($1 par) to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than thirty (30) days nor more than sixty (60) days prior to the date fixed for
such redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Preferred Stock ($1 par) to be redeemed with any bank or trust
company, having capital and surplus of more than Five Million Dollars
($5,000,000), named in such notice, directed to be paid to the respective
holders of the shares of Preferred Stock ($1 par) so to be redeemed, in amounts
equal to the redemption price of all shares of Preferred Stock ($1 par) so to
be redeemed, on surrender of stock certificate or certificates held by such
holders, and upon the making of such deposit such holders shall cease to be
shareholders with respect to such shares, and after such notice shall have been
given and such deposit shall have been made, such holders shall have no
interest in or claim against the Corporation with respect to such shares except
only to receive such money from such bank or trust company without interest or
the right to exercise, before the redemption date, any unexpired privileges of
conversion. In case less than all of the outstanding shares of any series of
Preferred Stock ($1 par) is to be redeemed, the Corporation shall select by lot
the shares of the series so to be redeemed in such manner as shall be
prescribed by its Board of Directors. If the holders of shares of Preferred
Stock ($1 par) which shall have been called for redemption shall not, within
six (6) years after such deposit, claim the amount deposited for the redemption
thereof, any such bank or trust company shall, upon
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demand, pay over to the Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any shares of Preferred Stock ($1 par) which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4C and any shares of
Preferred Stock ($1 par) which are purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of such series and any shares
of Preferred Stock ($1 par) which are converted in accordance with the express
terms thereof shall be cancelled and not reissued. Any shares of Preferred
Stock ($1 par) otherwise acquired by the Corporation shall resume the status of
authorized and unissued shares of Preferred Stock ($1 par) without serial
designation.
SECTION 4.5C--Liquidation--(a) The holders of Preferred Stock ($1 par)
of any series shall, in case of any liquidation, dissolution or winding up of
the affairs of the Corporation, be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Stock or any other shares
ranking junior to the Preferred Stock ($1 par) the amounts fixed with respect
to shares of such series in accordance with Section 4.1C. In case the net
assets of the Corporation legally available therefor are insufficient to permit
the payment upon all outstanding shares of Preferred Stock ($1 par) of the full
preferential amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon outstanding shares of Preferred Stock
($1 par) in proportion to the full preferential amounts to which each such
share is entitled. After payment to holders of Preferred Stock ($1 par) of the
full preferential amounts as aforesaid, holders of Preferred Stock ($1 par) as
such shall have no right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5C.
SECTION 4.6C--Voting--(a) The holders of Preferred Stock ($1 par) shall
be entitled to one-tenth (1/10) vote for each share of such stock upon all
matters presented to the shareholders; and, except as otherwise provided herein
or required by law, the holders of Preferred Stock ($1 par) and the holders of
Preferred Stock, the holders of $2.00 Par Preferred Stock and the holders of
Common Stock shall vote together as one class on all matters. If, and so
often as, the Corporation shall be in default in the payment of six (6) full
quarterly dividends (whether or not consecutive) on any series of Preferred
Stock ($1 par) at the time outstanding, whether or not earned or declared, the
holders of Preferred Stock ($1 par) of all series, voting separately as a class
and in addition to all other rights to vote for Directors, shall be entitled to
elect, as herein provided, two (2) members of the Board of Directors of the
Corporation who shall be in addition to the regular members of the Board of
Directors elected by the common shareholders and directors elected by the
holders of any other class of shares, pursuant to these Amended Articles of
Incorporation or
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the Corporation's Code of Regulations; provided, however, that the holders of
shares of Preferred Stock ($1 par) shall not have or exercise such special
class voting rights except at meetings of the shareholders for the election of
Directors at which the holders of not less than thirty-five percent (35%) of
the outstanding shares of Preferred Stock ($1 par) of all series then
outstanding are present in person or by proxy; and provided further that the
special class voting rights provided for herein when the same shall have become
vested shall remain so vested until all accrued and unpaid dividends on the
Preferred Stock ($1 par) of all series then outstanding shall have been paid,
whereupon the number of persons constituting the Board of Directors shall be
reduced by the number of Directors then in office elected pursuant to this
Section 4.6C, the term of office of said Directors so elected shall end, and
the holders of Preferred Stock ($1 par) shall be divested of their special
class voting rights in respect of subsequent elections of Directors, subject to
the revesting of such special class voting rights in the event hereinabove
specified in this paragraph. A vacancy in the class of Directors elected
pursuant to this Section 4.6C shall be filled by the remaining Directors of the
class and if no other Directors of the class are then in office such vacancy
shall be filled by the holders of Preferred Stock ($1 par) entitled to elect
the class of directors. The Code of Regulations in effect at the time of
filing of these terms and provisions is hereby amended to the extent it is
inconsistent herewith. In the event of default entitling the holders of
Preferred Stock ($1 par) to elect two (2) Directors as above specified, a
special meeting of the shareholders for the purpose of electing such Directors
shall be called by the Secretary of the Corporation upon written request of, or
may be called by, the holders of record of at least ten percent (10%) of the
shares of Preferred Stock ($1 par) of all series at the time outstanding, and
notice thereof shall be given in the same manner as that required for the
annual meeting of shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual meeting of
shareholders shall be held within ninety (90) days after the date of receipt of
the foregoing written request from the holders of Preferred Stock ($1 par). At
any meeting at which the holders of Preferred Stock ($1 par) shall be entitled
to elect Directors, the holders of thirty-five percent (35%) of the then
outstanding shares of Preferred Stock ($1 par) of all series, present in person
or by proxy, shall be sufficient to constitute a quorum, and the vote of the
holders of a majority of such shares so present at any such meeting at which
there shall be such a quorum shall be sufficient to elect the members of the
Board of Directors which the holders of Preferred Stock ($1 par) are entitled
to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds of the
shares of Preferred Stock ($1 par) at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of Preferred
Stock ($1 par) shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of Preferred Stock
($1 par) are concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the provisions
of the Amended Articles of Incorporation or of the Regulations of the
Corporation which affects adversely the voting powers, rights or
preferences of the holders of Preferred Stock ($1 par); provided,
however,
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that, for the purposes of this clause only, neither the amendment of the
Amended Articles of Incorporation so as to authorize or create, or to
increase the authorized or outstanding amount of, Preferred Stock ($1
par) or of any shares of any class ranking on a parity with or junior
to the Preferred Stock ($1 par), nor the amendment of the provisions of
the Regulations so as to increase the number of Directors of the
Corporation shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of Preferred Stock ($1 par); and
provided further, that if any amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all series of
Preferred Stock ($1 par) at the time outstanding, only the affirmative
vote of the holders of at least two-thirds of the number of the shares
at the time outstanding of the series so affected shall be required;
(ii) the authorization or creation of any class, or the increase
in the authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the Preferred
Stock ($1 par); or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Preferred Stock ($1 par) then
outstanding except in accordance with a stock purchase offer made to all
holders of record of Preferred Stock ($1 par), unless all dividends upon
all Preferred Stock ($1 par) then outstanding for all previous quarterly
periods shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto shall have
been complied with.
(c) The affirmative vote of the holders of at least a majority of the
shares of Preferred Stock ($1 par) at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of Preferred
Stock ($1 par) shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of Preferred Stock
($1 par) are concerned, such action may be effected with such vote):
(i) the sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation with
or merger into any other corporation unless the corporation resulting
from such consolidation or merger will have after such consolidation or
merger no class of shares either authorized or outstanding ranking prior
to or on a parity with the Preferred Stock ($1 par) except the same
number of shares ranking prior to or on a parity with the Preferred
Stock ($1 par) and having the same rights and preferences as the shares
of the Corporation authorized and outstanding immediately preceding such
consolidation or merger, and each holder of Preferred Stock ($1 par)
immediately preceding such consolidation or merger shall receive the
same number of shares, with the same rights and preferences, of the
resulting corporation; or
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(ii) the authorization of any shares ranking on a parity with the
Preferred Stock ($1 par) or an increase in the authorized number of
shares of Preferred Stock ($1 par).
SECTION 4.7C--Preemptive Rights--The holders of Preferred Stock ($1 par)
shall have no preemptive right to purchase or have offered to them for purchase
or have offered them for purchase any shares or other securities of the
Corporation, whether now or hereafter authorized.
SECTION 4.8C--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the Preferred Stock ($1 par)" or "on a parity with the
Preferred Stock ($1 par)", such reference shall mean and include all shares of
the Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality with (as the
case may be) the rights of the holders of Preferred Stock ($1 par); and
whenever reference is made to shares "ranking junior to the Preferred Stock",
such reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof as to the payment of dividends and
as to distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation are junior and
subordinate to the rights of the holders of Preferred Stock ($1 par). The
Preferred Stock ($1 par) shall rank on a parity with the Preferred Stock and
the $2.00 Par Preferred Stock.
D. EXPRESS TERMS OF THE $1.60 CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
[EXPLANATORY NOTE: The Express Terms of the $1.60 Convertible
Exchangeable Preferred Stock were deleted following the redemption of said
$1.60 Preferred Stock on January 1, 1995.]
E. TERMS OF $2.00 PAR PREFERRED STOCK
The Shares of $2.00 Par Preferred Stock shall have the following express
terms:
SECTION 4.1E--Issue in Series--Terms to be fixed by Directors--The $2.00
Par Preferred Stock may be issued from time to time in one or more series. All
shares of $2.00 Par Preferred Stock shall be of equal rank and shall be
identical, except in respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of Sections 4.2E to
4.8E, both inclusive, which provisions shall apply to all $2.00 Par Preferred
Stock, the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and with respect to each such series prior to the
issuance thereof to fix:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
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(b) the number of shares of the series, which number the Board
of Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of the
series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in the
event of any liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which such
conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6E(b) and 4.6E(c)) on the issuance of shares of any class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect
to each such series, the matters described in clauses (a) to (i), both
inclusive, of this Section 4.1E.
SECTION 4.2E--Dividends--The holders of $2.00 Par Preferred Stock of
each series, in preference to the holders of Common Stock and of any other
class of shares ranking junior to the $2.00 Par Preferred Stock, shall be
entitled to receive out of any funds legally available and when and as declared
by the Board of Directors dividends in cash at the rate for such series fixed
in accordance with the provisions of Section 4.1E and no more, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after,
the date or dates fixed with respect to such series. No dividends may be paid
upon or declared or set apart for any of the $2.00 Par Preferred Stock for any
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratable in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared or set
apart for all $2.00 Par Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend.
SECTION 4.3E--Dividends on Junior Stock--In no event so long as any
$2.00 Par Preferred Stock shall be outstanding shall any dividends, except a
dividend payable in Common Stock or other shares ranking junior to the $2.00 Par
Preferred
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Stock, be paid or declared or any distribution be made on the Common Stock or
any other shares ranking junior to the $2.00 Par Preferred Stock, nor shall any
Common Stock or any other shares ranking junior to the $2.00 Par Preferred Stock
be purchased, retired or otherwise acquired by the Corporation (except out of
the proceeds of the sale of Common Stock or other shares ranking junior to the
$2.00 Par Preferred Stock):
(a) unless all accrued and unpaid dividends on $2.00 Par
Preferred Stock, including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum sufficient
for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of $2.00 Par Preferred Stock of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 4.1E.
SECTION 4.4E--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6E(b)(iii), the Corporation may from
time to time redeem all or any part of the $2.00 Par Preferred Stock of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 4.1E or (ii) in fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price, fixed in accordance with the provisions of Section 4.1E,
together in each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the $2.00 Par Preferred Stock to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than thirty (30) days nor more than sixty (60) days prior to the date fixed for
such redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of $2.00 Par Preferred Stock to be redeemed with any bank or trust
company, having capital and surplus of more than Five Million Dollars
($5,000,000), named in such notice, directed to be paid to the respective
holders of the shares of $2.00 Par Preferred Stock so to be redeemed, in
amounts equal to the redemption price of all shares of $2.00 Par Preferred
Stock so to be redeemed, on surrender of the stock certificate or certificates
held by such holders, and upon the making of such deposit such holders shall
cease to be shareholders with respect to such shares, and after such notice
shall have been given and such deposit shall have been made such holders shall
have no interest in or claim against the Corporation with respect to such
shares except only to receive such money from such bank or trust company
without interest or the right to exercise, before the redemption date, any
unexpired privileges of conversion. In case less than all of the outstanding
shares of any series of $2.00 Par Preferred Stock are to be redeemed, the
Corporation shall select by lot the shares of that series so to be redeemed in
such manner as shall be prescribed by its Board of Directors. If the holders
of shares of $2.00 Par Preferred Stock which shall have been called for
redemption shall not, within ten years after such deposit, claim the amount
deposited for the redemption thereof, any such
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bank or trust company shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust company and the Corporation
shall be relieved of all responsibility in respect thereof and to such holders.
(c) Any shares of $2.00 Par Preferred Stock which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4E and any shares of
$2.00 Par Preferred Stock which are purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of such series and any shares
of $2.00 Par Preferred Stock which are converted in accordance with the express
terms thereof shall be cancelled and not reissued. Any shares of $2.00 Par
Preferred Stock otherwise acquired by the Corporation shall resume the status
of authorized and unissued shares of $2.00 Par Preferred Stock without serial
designation.
SECTION 4.5E--Liquidation--(a) The holders of $2.00 Par Preferred Stock
of any series shall, in case of any liquidation, dissolution or winding up of
the affairs of the Corporation be entitled to receive in full out of the assets
of the Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the $2.00 Par Preferred Stock the amounts fixed with respect to
shares of such series in accordance with Section 4.1E. In case the net assets
of the Corporation legally available therefor are insufficient to permit the
payment upon all outstanding shares of $2.00 Par Preferred Stock of the full
preferential amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon outstanding shares of $2.00 Par
Preferred Stock in proportion to the full preferential amount to which each
such share is entitled. After payment to holders of $2.00 Par Preferred Stock
of the full preferential amounts as aforesaid, holders of $2.00 Par Preferred
Stock as such shall have no right or claim to any of the remaining assets of
the Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5E.
SECTION 4.6E--Voting--(a) The holders of $2.00 Par Preferred Stock shall
be entitled to one vote for each share of such stock upon all matters presented
to the shareholders; and, except as otherwise provided herein or required by
law, the holders of $2.00 Par Preferred Stock and the holders of Preferred
Stock, the holders of Preferred Stock ($1 par) and the holders of Common Stock
shall vote together as one class on all matters. If, and so often as, the
Corporation shall be in default in the payment of six (6) full quarterly
dividends (whether or not consecutive) on any series of $2.00 Par Preferred
Stock at the time outstanding, whether or not earned or declared, the holders
of $2.00 Par Preferred Stock of all series, voting separately as a class and in
addition to all other rights to vote for Directors, shall be entitled to elect,
as herein provided, two (2) members of the Board of Directors of the
Corporation who shall be in addition to the regular members of the Board of
Directors elected by the common shareholders and directors elected by holders
of any other class of shares pursuant to the Amended Articles of Incorporation
or the Corporation's Code of Regulations;
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provided, however, that the holders of shares of $2.00 Par Preferred Stock
shall not have or exercise such special class voting rights except at meetings
of the shareholders for the election of Directors at which the holders of not
less than thirty-five percent (35%) of the outstanding shares of $2.00 Par
Preferred Stock of all series then outstanding are present in person or by
proxy; and provided further that the special class voting rights provided for
herein when the same shall have become vested shall remain so vested until all
accrued and unpaid dividends on the $2.00 Par Preferred Stock of all series
then outstanding shall have been paid, whereupon the number of persons
constituting the Board of Directors shall be reduced by the number of Directors
then in office elected pursuant to this Section, the term of office of said
Directors so elected shall end, and the holders of $2.00 Par Preferred Stock
shall be divested of their special class voting rights in respect of subsequent
elections of Directors, subject to the revesting of such special class voting
rights in the event hereinabove specified in this paragraph. A vacancy in the
class of Directors elected pursuant to this Section shall be filled by the
remaining Director of the class and the Code of Regulations in effect at the
time of filing of these terms and provisions is hereby amended to the extent it
is inconsistent herewith. In the event of default entitling the holders of
$2.00 Par Preferred Stock to elect two (2) Directors as above specified, a
special meeting of the shareholders for the purpose of electing such Directors
shall be called by the Secretary of the Corporation upon written request of, or
may be called by, the holders of record of at least ten percent (10%) of the
shares of $2.00 Par Preferred Stock of all series at the time outstanding, and
notice thereof shall be given in the same manner as that required for the
annual meeting of shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual meeting of
shareholders shall be held within ninety (90) days after the date of receipt of
the foregoing written request from the holders of $2.00 Par Preferred Stock.
At any meeting at which the holders of $2.00 Par Preferred Stock shall be
entitled to elect Directors, the holders of thirty-five percent (35%) of the
then outstanding shares of $2.00 Par Preferred Stock of all series, present in
person or by proxy, shall be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to elect the members
of the Board of Directors which the holders of $2.00 Par Preferred Stock are
entitled to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds of the
shares of $2.00 Par Preferred Stock at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of $2.00 Par
Preferred Stock shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of $2.00 Par
Preferred Stock are concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the provisions
of the Amended Articles of Incorporation or of the Regulations of the
Corporation which affects adversely the voting powers, rights or
preferences of the holders of $2.00 Par Preferred Stock; provided,
however, that, for the purposes of this clause only, (i) neither the
amendment of the Amended Articles of Incorporation so as to authorize or
create, or to increase the authorized or outstanding amount of, $2.00
Par
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Preferred Stock or of any shares of any class ranking on a parity with or
junior to the $2.00 Par Preferred Stock, nor the amendment of the
provisions of the Regulations so as to increase the number of Directors
of the Corporation shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of $2.00 Par Preferred Stock; and
provided further, that if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all series of
$2.00 Par Preferred Stock at the time outstanding, only the affirmative
vote of the holders of at least two-thirds (2/3) of the number of the
shares at the time outstanding of the series so affected shall be
required;
(ii) the authorization or creation of, or the increase in the
authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the $2.00 Par
Preferred Stock; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the $2.00 Par Preferred Stock then
outstanding except in accordance with a stock purchase offer made to all
holders of record of $2.00 Par Preferred Stock, unless all dividends
upon all $2.00 Par Preferred Stock then outstanding for all previous
quarterly dividend periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
(c) the affirmative vote of the holders of at least a majority of the
shares of $2.00 Par Preferred Stock at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of $2.00 Par
Preferred Stock shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of $2.00 Par
Preferred Stock are concerned, such action may be effected with such vote):
(i) The sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation with
or merger into any other corporation unless the corporation resulting
from such consolidation or merger will have after such consolidation or
merger no class of shares either authorized or outstanding ranking prior
to or on a parity with the $2.00 Par Preferred Stock except the same
number of shares ranking prior to or on a parity with the $2.00 Par
Preferred Stock and having the same rights and preferences as the shares
of the Corporation authorized and outstanding immediately preceding such
consolidation or merger, and each holder of $2.00 Par Preferred Stock
immediately preceding such consolidation or merger shall receive the
same number of shares, with the same rights and preferences, of the
resulting corporation; or
(ii) The authorization of any shares ranking on a parity with the
$2.00 Par Preferred Stock or an increase in the authorized number of
shares of $2.00 Par Preferred Stock.
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SECTION 4.7E--Preemptive Rights--The holders of $2.00 Par Preferred
Stock shall have no preemptive right to purchase or have offered to them for
purchase any shares or other securities of the Corporation, whether now or
hereafter authorized.
SECTION 4.8E--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the $2.00 Par Preferred Stock" or "on a parity with
the $2.00 Par Preferred Stock", such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation are given preference over, or rank on an equality with (as
the case may be), the rights of the holders of $2.00 Par Preferred Stock; and
whenever reference is made to shares "ranking junior to the $2.00 Par Preferred
Stock", such reference shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation are
junior and subordinate to the rights of the holders of $2.00 Par Preferred
Stock. The $2.00 Par Preferred Stock shall rank on a parity with the Preferred
Stock and the Preferred Stock ($1 par).
F. FAIR PRICE TO SHAREHOLDERS IN BUSINESS COMBINATIONS
SECTION 4.1F--The affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of the Corporation shall be required
for the approval or authorization of any "Business Combination" (as hereinafter
defined); provided, however, that the eighty percent (80%) voting requirement
shall not be applicable, and the provisions of Ohio law and of these Articles
relating to the percentage of shareholder approval, if any, shall apply to any
such Business Combination if:
(a) The "Continuing Directors" of the Corporation (as hereinafter
defined) by a two-thirds (2/3) vote have expressly approved the Business
Combination either in advance of or subsequent to the acquisition of
outstanding shares of Common Stock of the Corporation that caused the
Related Person involved in the Business Combination to become a Related
Person; or
(b) If the following conditions are satisfied:
(i) The aggregate amount of the cash and the fair market
value of the property, securities or other consideration to be
received in the Business Combination by holders of the Common
Stock of the Corporation, other than the Related Person involved
in the Business Combination, is not less than the "Highest Per
Share Price" (with appropriate adjustments for recapitalizations,
reclassifications, stock splits, reverse stock splits and stock
dividends) paid by the Related Person in acquiring any of its
holdings of the Corporation's Common Stock, all as determined by
two-thirds (2/3) of the Continuing Directors; and
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(ii) A proxy statement complying with the requirements of
the Securities Exchange Act of 1934, as amended, shall have been
mailed at least thirty (30) days prior to any vote on the
Business Combination, to all shareholders of the Corporation for
the purpose of soliciting shareholder approval of the Business
Combination. The proxy statement shall contain at the front
thereof, in a prominent place, the position of the Continuing
Directors as to the advisability (or inadvisability) of the
Business Combination and, if deemed appropriate by two-thirds
(2/3) of the Continuing Directors, the opinion of an investment
banking firm selected by two-thirds (2/3) of the Continuing
Directors as to the fairness of the terms of the Business
Combination, from the point of view of the holders of the
outstanding shares of capital stock of the Corporation other than
the Related Person involved in the Business Combination.
SECTION 4.2F--For purposes of this Section F of Article IV:
(a) The term "Business Combination" means (i) any merger, consolidation
or share exchange of the Corporation or any of its subsidiaries into or with a
Related Person, in each case irrespective of which corporation or company is
the surviving entity; (ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition to or with a Related Person (in a single
transaction or a series of related transactions) of all or a Substantial Part
(as hereinafter defined) of the assets of the Corporation (including without
limitation any securities of a subsidiary) or a Substantial Part of the assets
of any of its subsidiaries; (iii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition to or with the Corporation or to or with any of
its subsidiaries (in a single transaction or series of related transactions) of
all or a Substantial Part of the assets of a Related Person; (iv) the issuance
or transfer of any securities of the Corporation or any of its subsidiaries by
the Corporation or any of its subsidiaries to a Related Person (other than an
issuance or transfer of securities which is effected on a pro rata basis to all
shareholders of the Corporation); (v) any reclassification of securities
(including any reverse stock split), recapitalization, or any other transaction
involving the Corporation or any of its subsidiaries, that would have the
effect of increasing the voting power of a Related Person; (vi) the adoption of
any plan or proposal for the liquidation or dissolution of the Corporation
proposed by or on behalf of a Related Person, and (vii) the entering into of
any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) The term "Related Person" shall mean any individual, corporation,
partnership or other person or entity other than the Corporation or any of its
subsidiaries which, as of the record date for the determination of shareholders
entitled to notice of and to vote on any Business Combination, or immediately
prior to the consummation of such transaction, together with its "Affiliates"
and "Associates" (as defined in Rule 12b-2 of the Regulations under the
Securities Exchange Act of 1934 as in effect at the date of the adoption of
this Section F of Article IV by the shareholders of the Corporation
(collectively and as so in effect, the "Exchange Act")), are "Beneficial
Owners" (as defined in Rule 13d-3
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of the Exchange Act) in the aggregate of twenty percent (20%) or more of the
outstanding shares of Common Stock of the Corporation, and any Affiliate or
Associate of any such individual, corporation, partnership or other person or
entity. Notwithstanding the definition of "Beneficial Owners" in this
subparagraph (b), any Common Stock of the Corporation that any Related Person
has the right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, shall be deemed
beneficially owned by the Related Person.
(c) The term "Substantial Part" shall mean more than twenty percent
(20%) of the fair market value, as determined by two-thirds (2/3) of the
Continuing Directors, of the total consolidated assets of the Corporation and
its subsidiaries taken as a whole, as of the end of its most recent fiscal year
ending prior to the time the determination is being made.
(d) For the purposes of paragraph (b)(i) of Section 4.1F, in the event
of a Business Combination in which the Corporation is the surviving
corporation, the term "other consideration to be received" shall include,
without limitation, Common Stock or other capital stock of the Corporation
retained by shareholders of the Corporation other than Related Persons or
parties to such Business Combination.
(e) The term "Continuing Directors" shall mean a director who either (i)
was a member of the Board of Directors of the Corporation immediately prior to
the time that the Related Person involved in a Business Combination became a
Related Person, or (ii) was designated (before his or her initial election as
Director) as a Continuing Director by two-thirds of the then Continuing
Directors.
(f) A "Related Person" shall be deemed to have acquired a share of the
Common Stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares owned by Affiliates,
Associates or other persons whose ownership is attributed to a Related Person
under the foregoing definition of Related Person, the price paid for said
shares shall be deemed to be the higher of (i) the price paid upon the
acquisition thereof by the Affiliate, Associate or other person or (ii) the
market price of the shares in question at the time when the Related Person
became the Beneficial Owner thereof.
(g) The term "Highest Per Share Price" as used in this Section F shall
mean the highest price determined by two-thirds (2/3) of the Continuing
Directors to have been paid at any time by the Related Person for any share or
shares of Common Stock. In determining the Highest Per Share Price, all
purchases by the Related Person shall be taken into account regardless of
whether the shares were purchased before or after the Related Person became a
Related Person. The Highest Per Share Price shall include any brokerage
commissions, transfer taxes and soliciting dealers' fees paid by the Related
Person with respect to the shares of Common Stock of the Corporation acquired
by the Related Person.
SECTION 4.3F--Any amendment, change or repeal of this Article IV,
Section F, or any other amendment of these Articles of Incorporation which
would have the
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effect of modifying or permitting circumvention of this Article IV, Section F,
shall require the favorable vote, at a meeting of the shareholders of the
Corporation, of the holders of at least eighty percent (80%) of the voting
power of the Corporation; provided, however, that this Section 4.3F shall not
apply to and such eighty percent (80%) vote shall not be required for, any such
amendment, change or repeal recommended to shareholders by two-thirds (2/3) of
the Continuing Directors and such amendment, change or repeal so recommended
shall require only the vote, if any, required under the applicable provisions
of the General Corporation Law of the State of Ohio and of these Articles. For
the purposes of this Section 4.3F only, if at the time when any such amendment,
change, or repeal is under consideration there is no proposed Business
Combination (in which event, the definition of Continuing Director in paragraph
(e) of Section 4.2F would be inapplicable), the "Continuing Directors" shall be
deemed to be those persons who are members of the Board of Directors of the
Corporation at the time when the amendment of-these Articles to add this
Section F was approved by the shareholders plus those persons who are
Continuing Directors under clause (ii) of paragraph (e) of Section 4.2F.
ARTICLE V
PURCHASE OF CORPORATION'S SHARES
The Corporation by action of its Board of Directors may purchase any
issued shares of the Corporation to the extent not prohibited by law.
ARTICLE VI
OPTIONS AND WARRANTS
The directors are authorized, from time to time, in their discretion, to
grant to such persons, for such periods and upon such terms as to the directors
may appear advisable, options to purchase such number of shares of any class or
classes or of any series of any class as the directors may deem advisable, and
to cause warrants or other appropriate instruments evidencing such options to
be issued.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
(a) The Corporation shall indemnify any director or officer or any
former director or officer of the Corporation or any person who is serving or
has served at the request of the Corporation as a director, officer, or trustee
of another corporation, joint venture, trust or other enterprise against
expenses, including attorneys' fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the Corporation, to which he was, is, or is threatened to be made a
party by reason of the fact that he is or was such director, officer, or
trustee, provided it is determined in the manner set forth in paragraph (c) of
this Article that he acted
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in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation and that, with respect to any criminal
action or proceeding, he had no reasonable cause to believe his conduct was
unlawful.
(b) In the case of any threatened, pending or completed action or suit
by or in the right of the Corporation, the Corporation shall indemnify each
person indicated in paragraph (a) of this Article against expenses, including
attorneys' fees, actually and reasonably incurred in connection with the
defense or settlement thereof, provided it is determined in the manner set
forth in paragraph (c) of this Article that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court of common pleas or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper.
(c) The determinations referred to in paragraphs (a) and (b) of this
Article shall be made (i) by a majority vote of a quorum consisting of
directors of the Corporation who were not and are not parties to or threatened
with any such action, suit or proceeding, or (ii) if such a quorum is not
obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Corporation, or any person to
be indemnified, within the past five years, or (iii) by the shareholders, or
(iv) by the court of common pleas or the court in which such action, suit or
proceeding was brought.
(d) Expenses, including attorneys' fees, incurred in defending any
action, suit or proceeding referred to in paragraphs (a) and (b) of this
Article, may be paid by the Corporation in advance of the final disposition of
such action, suit, or proceeding as authorized by the directors in the specific
case upon receipt of an undertaking by or on behalf of the director, officer,
or trustee to repay such amount, unless it shall ultimately be determined that
he is entitled to be indemnified by the Corporation as authorized in this
Article.
(e) The indemnification provided by this Article shall not be deemed
exclusive (i) of any other rights to which those seeking indemnification may be
entitled under the articles, the regulations, any agreement, any insurance
purchased by the Corporation, vote of shareholders or disinterested directors,
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, or of (ii) the power of the
Corporation to indemnify any person who is or was an employee or agent of the
Corporation or of another corporation, joint venture, trust or other enterprise
which he is serving or has served at the request of the Corporation, to the
same extent and in the same situations and subject to the same determinations
as are hereinabove set forth with respect to a director, officer, or trustee.
As used
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in this paragraph (e), references to the "Corporation" include all constituent
corporations in a consolidation or merger in which the Corporation or a
predecessor to the Corporation by consolidation or merger was involved. The
indemnification provided by this Article shall continue as to a person who has
ceased to be a director, officer, or trustee and shall inure to the benefit of
the heirs, executors, and administrators of such a person.
ARTICLE VIII
ELIMINATION OF CUMULATIVE VOTING
No shareholder of this Corporation may cumulate his voting power.
These Twenty-Seventh Amended Articles of Incorporation shall supersede
and take the place of the theretofore existing Articles of Incorporation and
amendments thereto.
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