1
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
OFFICEMAX, INC.
Michael Feuer, Chairman of the Board of Directors, and Ross H. Pollock,
Secretary, of OfficeMax, Inc., an Ohio corporation (the "Corporation"), do
hereby certify that at a meeting of the Board of Directors of the Corporation
held on March 17, 2000, the following resolutions to amend the Second Amended
and Restated Articles of Incorporation, as amended, of the Corporation were
adopted pursuant to the authority granted by Section 1701.70(B)(1) of the Ohio
Revised Code:
RESOLVED, that the Second Amended and Restated Articles of
Incorporation, as amended, of the Corporation be, and they hereby are, amended
by adding at the end of Division A of Article Fourth a new Section 7 that reads
as follows:
SECTION 7. SERIES A PARTICIPATING CUMULATIVE SERIAL PREFERRED SHARES.
---------------------------------------------------------
(a) DESIGNATION AND AMOUNT. Of the 100,000,000 authorized Serial
Preferred Shares, 1,500,000 are designated as a series designated as "Series A
Participating Cumulative Serial Preferred Shares" (the "Series A Preferred
Shares"). The Series A Preferred Shares have the express terms set forth in this
Division as being applicable to all Serial Preferred Shares as a class and, in
addition, the following express terms applicable to all Series A Preferred
Shares as a series of Serial Preferred Shares. The number of Series A Preferred
Shares may be increased (subject to paragraph (i) of this Section 7) or
decreased by resolution of the Board of Directors and by the filing of a
certificate of amendment pursuant to the provisions of the General Corporation
Law of the State of Ohio stating that such increase or reduction has been so
authorized; however, no decrease shall reduce the number of Series A Preferred
Shares then outstanding plus the number of Series A Preferred Shares issuable
upon exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
(b) DIVIDENDS OR DISTRIBUTIONS. (1) Subject to the rights of the
holders of shares of any other class of capital stock of the Corporation ranking
prior to the Series A Preferred Shares with respect to dividends, the holders of
the Series A Preferred Shares shall be entitled to receive, when, as and if
declared by the Board of Directors, out of the assets of the Corporation legally
available therefor, (A) quarterly dividends payable in cash on the last day of
each fiscal quarter in each year, or such other dates as the Board of Directors
of the Corporation shall approve (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 Series A Preferred Share or a
fraction of a Series A Preferred Share, in the amount of $0.05 per whole
2
Series A Preferred Share (rounded to the nearest cent) less the amount of all
cash dividends declared on the Series A Preferred Shares pursuant to the
following clause (B) since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any Series A Preferred Share or fraction of a Series A
Preferred Share (the total of which shall not, in any event, be less than zero)
and (B) dividends payable in cash on the payment date for each cash dividend
declared on the Common Shares in an amount per Whole Series A Preferred Share
(rounded to the nearest cent) equal to the Formula Number (as hereinafter
defined) then in effect times the cash dividends then to be paid on each Common
Share. In addition, if the Corporation shall pay any dividend or make any
distribution on the Common Shares payable in assets, securities or other forms
of noncash consideration (other than dividends or distributions payable solely
in Common Shares), then, in each such case, the Corporation shall simultaneously
pay or make on each outstanding whole Series A Preferred Share a dividend or
distribution in like kind equal to the Formula Number then in effect times such
dividend or distribution on each Common Share. As used herein, the "Formula
Number" shall be 1,000; PROVIDED, HOWEVER, that, if at any time after March 17,
2000, the Corporation shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or make any distribution on the Common Shares in Common
Shares, (ii) subdivide (by a stock split or otherwise) the outstanding Common
Shares into a larger number of Common Shares or (iii) combine (by a reverse
stock split or otherwise) the outstanding Common Shares into a smaller number of
Common Shares, then in each such event the Formula Number shall be adjusted to a
number determined by multiplying the Formula Number in effect immediately prior
to such event by a fraction, the numerator of which is the number of Common
Shares that are outstanding immediately after such event and the denominator of
which is the number of Common Shares that are outstanding immediately prior to
such event (and rounding the result to the nearest whole number); and PROVIDED
FURTHER that, if at any time after March 17, 2000, the Corporation shall issue
any shares of its capital stock in a merger, reclassification, or change of the
outstanding Common Shares, then in each such event the Formula Number shall be
appropriately adjusted to reflect such merger, reclassification or change so
that each Series A Preferred Share continues to be the economic equivalent of a
Formula Number of Common Shares prior to such merger, reclassification or
change.
(2) The Corporation shall declare a dividend or distribution on the
Series A Preferred Shares as provided in subparagraph (b)(1) immediately prior
to or at the same time it declares a dividend or distribution on the Common
Shares (other than a dividend or distribution payable solely in Common Shares);
PROVIDED, HOWEVER, that, in the event no dividend or distribution (other than a
dividend or distribution payable solely in Common Shares) shall have been
declared on the Common Shares during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $0.05 per share on the Series A Preferred Shares shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders of Series A
Preferred Shares entitled to receive a dividend or distribution declared
thereon,
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which record date shall be the same as the record date for any corresponding
dividend or distribution on the Common Shares.
(3) Dividends shall begin to accrue and be cumulative on outstanding
Series A Preferred Shares from and after the Quarterly Dividend Payment Date
next preceding the date of original issue of such Series A Preferred Shares;
PROVIDED, HOWEVER, that dividends on such shares which are originally issued
after the record date for the determination of holders of Series A Preferred
Shares entitled to receive a quarterly dividend and on or prior to the next
succeeding Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date. Notwithstanding
the foregoing, dividends on Series A Preferred Shares which are originally
issued prior to the record date for the determination of holders of Series A
Preferred shares entitled to receive a quarterly dividend on the first Quarterly
Dividend Payment Date shall be calculated as if cumulative from and after the
last day of the fiscal quarter next preceding the date of original issuance of
such shares. Accrued but unpaid dividends shall not bear interest. Dividends
paid on Series A Preferred Shares 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.
(4) So long as any Series A Preferred Shares are outstanding, no
dividends or other distributions shall be declared, paid or distributed, or set
aside for payment or distribution, on the Common Shares unless, in each case,
the dividend required by this paragraph (b) of this Section 7 to be declared on
the Series A Preferred Shares shall have been declared.
(5) The holders of the Series A Preferred Shares shall not be entitled
to receive any dividends or other distributions except as provided herein.
(c) VOTING RIGHTS. (1) The holders of Series A Preferred Shares shall
have the voting rights set forth in Article Fourth, Division A, Section 5 of
these Articles.
(2) Except as provided in Article Fourth, Division A, Section 5 of
these Articles, in paragraph (i) of this Section 7 or by applicable law, holders
of Series A Preferred Shares shall have no voting rights and their consent shall
not be required for authorizing or taking any corporate action.
(d) LIQUIDATION RIGHTS. Upon the liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, no distribution shall be
made (1) to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Shares unless,
prior thereto, the holders of Series A Preferred Shares shall have received an
amount equal to the accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, plus an amount equal to
the greater of (x) $1,000 per whole share or (y) an aggregate amount per share
equal to the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Shares
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or (2) to the holders of shares ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred Shares,
except distributions made ratably on the Series A Preferred Shares and all other
such parity shares in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding up.
(e) CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which Common
Shares are exchanged for or changed into other shares or securities, cash or any
other property, then in any such case the then outstanding Series A Preferred
Shares shall at the same time be similarly exchanged or changed into an amount
per share equal to the Formula Number then in effect times the aggregate amount
of shares, securities, cash or any other property (payable in kind), as the case
may be, into which or for which each Common Share is exchanged or changed. In
the event both this paragraph (e) of this Section 7 and paragraph (b) of this
Section 7 appear to apply to a transaction, this paragraph (e) of this Section 7
will control.
(f) NO REDEMPTION; NO SINKING FUND. (1) The Series A Preferred Shares
shall not be subject to redemption by the Corporation or at the option of any
holder of Series A Preferred Shares; PROVIDED, HOWEVER, that, subject to Article
Fourth, Division A the Corporation may purchase or otherwise acquire outstanding
Series A Preferred Shares in the open market or by offer to any holder or
holders of Series A Preferred Shares.
(2) The Series A Preferred Shares shall not be subject to or entitled
to the operation of a retirement or sinking fund.
(g) FRACTIONAL SHARES. The Series A Preferred Shares shall be issuable
in whole shares or in any fraction of a share that is one one-thousandth of a
share or any integral multiple of such fraction which shall entitle the holder,
in proportion to such holder's fractional shares, to receive dividends, exercise
voting rights, participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Shares. In lieu of fractional shares,
the Corporation, prior to the first issuance of a Series A Preferred Share or a
fraction of a Series A Preferred Share, may elect (1) to make a cash payment for
fractions of a share other than one one-thousandths of a share or any integral
multiple thereof or (2) to issue depository receipts evidencing such authorized
fraction of a Series A Preferred Share pursuant to an appropriate agreement
between the Corporation and a depository selected by the Corporation; PROVIDED,
HOWEVER, that such agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and preferences to which they are
entitled as holders of the Series A Preferred Shares.
(h) REACQUIRED SHARES. Any Series A Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued Serial Preferred Shares,
without
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designation as to series until such shares are once more designated as part of a
particular series by the Board of Directors pursuant to the provisions of these
Articles.
(i) ADDITIONAL SERIAL PREFERRED SHARES. If any Series A Preferred
Shares are outstanding, the Corporation shall not, with the purpose or effect of
diluting the voting power of the outstanding Series A Preferred Shares, increase
the number of authorized Series A Preferred Shares (except as may be required by
the Rights Agreement dated as of March 17, 2000 between the Corporation and
First Chicago Trust Company of New York, as Rights Agent) or issue shares of any
other series of the Serial Preferred Shares without the affirmative vote of the
holders of at least two-thirds of the outstanding Series A Preferred Shares.
(j) SEVERABILITY. If any term or other provisions of this Section 7 is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Section 7 shall nevertheless
remain in full force and effect.
RESOLVED FURTHER, that, any officer of the Corporation is hereby
authorized to sign and file with the Secretary of State of the State of Ohio one
or more certificates in the form required by Section 1701.73(A) of the General
Corporation Law of the State of Ohio setting forth a copy of these resolutions.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate
of Amendment on this 17th day of March, 2000.
MICHAEL FEUER,
/s/ Michael Feuer
------------------------------------------
Title: Chairman of the Board of Directors
ROSS H. POLLOCK,
/s/ Ross H. Pollock
------------------------------------------
Title: Secretary
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CERTIFICATE
OF
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
OFFICEMAX, INC.
The undersigned, Edward Cornell and Todd M. DuChene, the duly elected
and acting Executive Vice President and Assistant Secretary, respectively, of
OfficeMax, Inc., an Ohio corporation (the "Company"), hereby certify that the
following resolution was adopted by the unanimous written consent of
shareholders of the Company on October 31, 1994:
RESOLVED, that the Second Amended and Restated
Articles of Incorporation set forth on the attached Exhibit A
be, and they hereby are, approved and adopted as the amended
articles of the Company pursuant to Section 1701.72 of the
Ohio Revised Code, superseding in all respects the Amended and
Restated Articles of Incorporation of the Company.
IN WITNESS WHEREOF, Edward Cornell, Executive Vice President, and Todd
M. DuChene, Assistant Secretary, of the Company, have hereunto subscribed their
names this 31st day of October, 1994.
/s/ Edward Cornell
-----------------------------------------
Edward Cornell, Executive Vice President
/s/ Todd M. DuChene
-----------------------------------------
Todd M. DuChene, Assistant Secretary
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Exhibit A
SECOND AMENDED AND RESTATED
---------------------------
ARTICLES OF INCORPORATION
-------------------------
OF
OFFICEMAX. INC.
---------------
FIRST: The name of the Corporation shall be "OfficeMax, Inc."
SECOND: The place in the State of Ohio where the principal
office of the Corporation is to be located is in the city of Shaker Heights,
Cuyahoga County.
THIRD: 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 and any amendments
heretofore or hereafter made thereto.
FOURTH: The authorized number of shares of the Corporation is
310,000,000 consisting of 200,000,000 Common Shares, without par value
(hereinafter referred to as "Common Shares"), 100,000,000 Serial Preferred
Shares, without par value (hereinafter referred to as "Serial Preferred
Shares"), and 10,000,000 Voting Preference Shares, without par value
(hereinafter refered to as "Voting Preference Shares").
DIVISION A
The Serial Preferred Shares shall have the following express terms:
SECTION 1. SERIES. The Serial Preferred Shares may be issued from time
to time in one or more series. All Serial Preferred Shares 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 a series
shall be identical with all other shares of such series, except as to the dates
from which dividends shall accrue and be cumulative. All Serial Preferred Shares
shall rank on a parity with and be identical to all Voting Preference Shares
except in respect of (i) the matters that may be fixed by the Board of Directors
as provided in clauses (a) through (i), both inclusive, of this Section and (ii)
the voting rights and provisions for consents relating to Serial Preferred
Shares as fixed and determined by Section 5 of this Division. Subject to the
provisions of Sections 2 through 6, both inclusive, of this Division, which
provisions shall apply to all Serial Preferred Shares, 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 to determine and fix prior to the issuance
thereof (and thereafter, to the extent provided in clause (b) of this Section)
the following:
(a) The designation of the series, which may be by
distinguishing number letter or title;
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(b) The authorized 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 from time to time
before or after the issuance thereof (but not below the number of
shares thereof then outstanding);
(c) The dividend rate or rates of the series, including the
means by which any such rate may be established;
(d) The date or dates from which dividends shall accrue and be
cumulative and the dates on which and the period or periods for which
dividends, if declared, shall be payable, including the means by which
any such date or period may be established;
(e) The redemption rights and redemption price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any, for the
purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation;
(h) Whether the shares of the series shall be convertible into
Common Shares or shares of any other class and, if so, the conversion
rate or rates or 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 Subsection
5(c) of this Division) on the issuance of shares of the same series or
of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Second Amended and Restated Articles of Incorporation fixing,
with respect to each such series, the matters described in clauses (a) through
(i), both inclusive, of this Section and is authorized to take such actions with
respect thereto as may be required by law in order to effect such amendments.
SECTION 2. DIVIDENDS.
(a) The holders of Serial Preferred Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Serial Preferred Shares, shall be entitled
to receive out of any funds legally available for the payment of
dividends on Serial Preferred Shares and Voting Preference Shares, when
and as declared by the Board of Directors, dividends in cash at the
rate or rates for such series fixed in accordance with the provisions
of Section 1 of this Division and no more, payable on the dates fixed
for such series. Such dividends shall accrue and be cumulative, in the
case of shares of each particular series, from and after the date or
dates fixed with respect to such series.
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No dividends shall be paid upon or declared or set apart for any series
of Serial Preferred Shares for any dividend period unless at the same
time (1) a like proportionate dividend payable for the dividend periods
terminating on the same or any earlier date, ratably in proportion to
the respective annual dividend rates fixed therefor, shall have been
paid upon or declared or set apart for all Serial Preferred Shares of
all series then issued and outstanding and entitled to receive such
dividend and (2) a like proportionate dividend payable for the dividend
periods terminating on the same or any earlier date, ratably in
proportion to the respective dividend rates fixed therefor, shall have
been paid upon or declared or set apart for all Voting Preference
Shares of all series then issued and outstanding and entitled to
receive such dividend.
(b) So long as any Serial Preferred Shares shall be
outstanding no dividend, except a dividend payable in Common Shares or
other shares ranking junior to Serial Preferred Shares, shall be paid
or declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking junior to
Serial Preferred Shares, nor shall any Common Shares or any other
shares ranking junior to Serial Preferred Shares be purchased, retired
or otherwise acquired by the Corporation, except out of the proceeds of
the sale of Common Shares or other shares of the Corporation ranking
junior to Serial Preferred Shares received by the Corporation
subsequent to the date of first issuance of Serial Preferred Shares of
any series, unless:
(1) All accrued and unpaid dividends on Serial
Preferred Shares, including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(2) There shall be no arrearage with respect to the
redemption of Serial Preferred Shares of any series from any
sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Division.
SECTION 3. REDEMPTION.
(a) Subject to the express terms of each series and the
provisions of Subsection 5(c)(3) of this Division, the Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Serial Preferred Shares at the time outstanding at the
applicable redemption price for such series fixed in
accordance with the provisions of Section 1 of this Division;
and
(2) Shall, from time to time, make such redemptions
of each series of Serial Preferred Shares as may be required
to fulfill the requirements of any sinking fund provided for
shares of such series at the applicable sinking fund
redemption prices fixed in accordance with the provisions of
Section 1 of this Division;
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and shall in the case of any such redemption pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of Serial Preferred
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Division prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Serial Preferred Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any
bank or trust company in Cleveland, Ohio, or New York, New
York, having capital and surplus of not less than
$100,000,000, named in such notice and direct that there be
paid to the respective holders of Serial Preferred Shares so
to be redeemed amounts equal to the redemption price of Serial
Preferred Shares so to be redeemed, together with such accrued
and unpaid dividends thereon, on surrender of the share
certificate or certificates held by such holders; and upon the
deposit of such notice in the mail and the making of such
deposit of money with such bank or trust company, such holders
shall cease to be shareholders with respect to such shares;
and from and after the time such notice shall have been so
deposited and such deposit of money shall have been so made,
such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right
to receive such money from such bank or trust company without
interest or to exercise before the redemption date any
unexpired privileges of conversion. If less than all of the
outstanding Serial Preferred Shares are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed
in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Serial Preferred Shares which
have been called for redemption shall not within five 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 Serial Preferred Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Serial Preferred Shares
without serial designation.
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SECTION 4. LIQUIDATION.
(a) (1) If any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation,
the holders of Serial Preferred Shares of any series shall 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 Common Shares or any
other shares ranking junior to Serial Preferred Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Division, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
If the net assets of the Corporation legally available
therefor are insufficient to permit the payment upon all
outstanding Serial Preferred Shares and Voting Preference
Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Serial Preferred
Shares and Voting Preference Shares in proportion to the full
preferential amount to which each such share is entitled.
(2) After payment to the holders of Serial Preferred
Shares of the full preferential amounts as aforesaid, the
holders of Serial Preferred Shares, 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 entity, the merger of any other
corporation or entity into the Corporation, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation,
shall not be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
SECTION 5. VOTING.
(a) The holders of Serial Preferred Shares shall have no
voting rights, except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of the equivalent of the full dividends
on any series of Serial Preferred Shares at the time
outstanding, whether or not earned or declared, for a number
of dividend payment periods (whether or not consecutive) which
in the aggregate contain at least 540 days, the holders of
Serial Preferred Shares of all series, voting together as one
separate class, shall be entitled to elect, as herein
provided, two members of the Board of Directors of the
Corporation; provided, however, that the holders of Serial
Preferred Shares shall not have or exercise such special class
voting rights except at meetings of such shareholders for the
election of directors at which the holders of not less than
50% of the outstanding Serial Preferred Shares of all series
then outstanding are present in person
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or by proxy; and provided further that the special class
voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all
accrued and unpaid dividends on Serial Preferred Shares of all
series then outstanding shall have been paid, whereupon the
holders of Serial Preferred Shares 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 on another default of the type specified in this
paragraph.
(2) In the event of default entitling the holders of
Serial Preferred Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 10% of Serial Preferred Shares 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 called to be held within 120
days after the date of receipt of the foregoing written
request from the holders of Serial Preferred Shares; provided
further, however, that if that annual meeting is not so held
within such 120 day period, a special meeting shall be called
as soon as is practicable after the Corporation becomes aware
that such annual meeting will not be so held. At any meeting
at which the holders of Serial Preferred Shares shall be
entitled to elect directors, the holders of 50% of Serial
Preferred Shares of all series at the time outstanding,
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 Serial
Preferred Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Second Amended and
Restated Articles of Incorporation or the Code of Regulations
of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the
Corporation, the two directors who may be elected by the
holders of Serial Preferred Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation nor require
the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the
two directors elected by the holders of Serial Preferred
Shares shall be elected annually for terms expiring at the
next succeeding annual meeting of shareholders.
(3) The terms of office of all directors then in
office elected by holders of Serial Preferred Shares as
provided in this Subsection shall terminate immediately upon
the expiration of the term of office during
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which occurs any divesting of the special class voting rights
of these holders. If the office of any director elected by
such holders becomes vacant by reason of death, resignation,
removal from office or otherwise, the holders of a majority of
Serial Preferred Shares of all series at the time outstanding,
present in person or by proxy at a special meeting of
shareholders called and held in accordance with Subsection (2)
above, shall elect a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
(c) The affirmative vote of the holders of at least two-thirds
of Serial Preferred Shares at the time outstanding, voting together as
one separate class, shall be necessary to effect any one or more of the
following (but so far as the holders of Serial Preferred Shares are
concerned, such action may be effected with such vote):
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Second Amended and Restated Articles of Incorporation
or of the Code of Regulations of the Corporation which affects
adversely the preferences or voting or other rights of the
holders of Serial Preferred Shares; provided, however, neither
the amendment of the Second Amended and Restated Articles of
Incorporation so as to authorize, create or change the
authorized or outstanding number of Serial Preferred Shares or
of any shares ranking on a parity with or junior to Serial
Preferred Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed
to affect adversely the preferences or voting or other rights
of the holders of Serial Preferred Shares; and provided
further, that if such amendment, alteration or repeal affects
adversely the preferences or voting or other rights of one or
more but not all series of Serial Preferred Shares at the time
outstanding, only the affirmative vote of the holders of at
least two-thirds of the number of shares at the time
outstanding of the series so affected shall be required;
(2) The authorization, creation or increase in the
authorized number of shares, or of any security convertible
into shares, in either case ranking prior to the Serial
Preferred Shares; or
(3) The purchase or redemption (for sinking fund
purposes or otherwise) of less than all Serial Preferred
Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Serial
Preferred Shares, unless all dividends on all Serial Preferred
Shares and then outstanding for all previous 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.
SECTION 6. DEFINITIONS. For the purposes of this Division:
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(a) Whenever reference is made to shares "ranking prior to
Serial Preferred Shares," such reference shall mean 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 the rights of the
holders of Serial Preferred Shares;
(b) Whenever reference is made to shares "on a parity with
Serial Preferred Shares," such reference shall mean all Voting
Preference Shares and all other 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 rank equally (except as to the amounts fixed therefor) with
the rights of the holders of Serial Preferred Shares; and
(c) Whenever reference is made to shares "ranking junior to
Serial Preferred Shares," such reference shall mean all shares of the
Corporation other than those defined under Subsections (a) and (b) of
this Section as shares "ranking prior to" or "on a parity with" Serial
Preferred Shares.
DIVISION B
The Voting Preference Shares shall have the following express terms:
SECTION 1. SERIES 1. The Voting Preference Shares may be issued from
time to time in one or more series. All Voting Preference Shares 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 a
series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Voting Preference
Shares shall rank on a parity with and be identical to all Serial Preferred
Shares except in respect of (i) the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), both inclusive, of this
Section and (ii) the voting rights and provisions for consents relating to
Voting Preference Shares as fixed and determined by Section 5 of this Division.
Subject to the provisions of Sections 2 through 6, both inclusive, of this
Division, which provisions shall apply to all Voting Preference Shares, 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 to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in clause (b) of
this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized 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 from time to time
before or after the issuance thereof (but not below the number of
shares thereof then outstanding);
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(c) The dividend rate or rates of the series, including the
means by which any such rate may be established;
(d) The date or dates from which dividends shall accrue and be
cumulative and the dates on which and the period or periods for which
dividends, if declared, shall be payable, including the means by which
any such date or period may be established;
(e) The redemption rights and redemption price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any, for the
purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation;
(h) Whether the shares of the series shall be convertible into
Common Shares or shares of any other class and, if so, the conversion
rate or rates or 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 Subsection
5(c) of this Division) on the issuance of shares of the same series or
of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Second Amended and Restated Articles of Incorporation fixing,
with respect to each such series, the matters described in clauses (a) through
(i), both inclusive, of this Section and is authorized to take such actions with
respect thereto as may be required by law in order to effect such amendments.
SECTION 2. DIVIDENDS.
(a) The holders of Voting Preference Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to Voting Preference Shares, shall be entitled to
receive out of any funds legally available for the payment of dividends
on Voting Preference Shares and Serial Preferred Shares, when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 of this Division and no more, payable on the dates fixed for
such series. Such dividends shall accrue and 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 shall be paid upon or
declared or set apart for any series of Voting Preference Shares for
any dividend period unless at the same time (1) a like proportionate
dividend payable for the dividend periods terminating on the same or
any earlier date, ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or set
apart
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for all Voting Preference Shares of all series then issued and
outstanding and entitled to receive such dividend and (2) a like
proportionate dividend payable for the dividend periods terminating on
the same or any earlier date, ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Serial Preferred Shares of all series then issued and
outstanding and entitled to receive such dividend.
(b) So long as any Voting Preference Shares shall be
outstanding no dividend, except a dividend payable in Common Shares or
other shares ranking junior to Voting Preference Shares, shall be paid
or declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking junior to
Voting Preference Shares, nor shall any Common Shares or any other
shares ranking junior to Voting Preference Shares be purchased, retired
or otherwise acquired by the Corporation, except out of the proceeds of
the sale of Common Shares or other shares of the Corporation ranking
junior to Voting Preference Shares received by the Corporation
subsequent to the date of first issuance of Voting Preference Shares of
any series, unless:
(1) All accrued and unpaid dividends on Voting
Preference Shares, including the full dividends for all
current dividend periods, shall have been declared and paid or
a sum sufficient for payment thereof set apart; and
(2) There shall be no arrearage with respect to the
redemption of Voting Preference Shares of any series from any
sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Division.
SECTION 3. REDEMPTION.
(a) Subject to the express terms of each series and to the
provisions of Subsection 5(c)(6) of this Division, the Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Voting Preference Shares at the time outstanding at the
applicable redemption price for such series fixed in
accordance with the provisions of Section 1 of this Division;
and
(2) Shall, from time to time, make such redemptions
of each series of Voting Preference Shares as may be required
to fulfill the requirements of any sinking fund provided for
shares of such series at the applicable sinking fund
redemption prices fixed in accordance with the provisions of
Section 1 of this Division;
and shall in the case of any such redemption pay all accrued and unpaid
dividends to the redemption date.
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(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of Voting Preference Shares
to be redeemed at their respective addresses then appearing on the
books of the Corporation, not less than 30 days nor more than 60 days
prior to the date fixed for such redemption, or such other time prior
thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Division prior to the issuance thereof. At any time
after notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of Voting
Preference Shares to be redeemed, together with accrued and unpaid
dividends thereon to the redemption date, with any bank or trust
company in Cleveland, Ohio, or New York, New York, having capital and
surplus of not less than $100,000,000, named in such notice and direct
that there be paid to the respective holders of Voting Preference
Shares so to be redeemed amounts equal to the redemption price of
Voting Preference Shares so to be redeemed, together with such accrued
and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice
in the mail and the making of such deposit of money with such bank or
trust company, such holders shall cease to be shareholders with respect
to such shares; and from and after the time such notice shall have been
so deposited and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation with
respect to such shares, except only the right to receive such money
from such bank or trust company without interest or to exercise before
the redemption date any unexpired privileges of conversion. If less
than all of the outstanding Voting Preference Shares are to be
redeemed, the Corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Voting Preference Shares which
have been called for redemption shall not within five 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 Voting Preference Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Voting Preference Shares
without serial designation.
SECTION 4. LIQUIDATION.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Voting Preference Shares of any
series shall 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
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Shares or any other shares ranking junior to Voting Preference
Shares, the amounts fixed with respect to shares of such
series in accordance with Section 1 of this Division, plus an
amount equal to all dividends accrued and unpaid thereon to
the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up of the affairs of the
Corporation. If the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Voting Preference Shares and Serial Preferred
Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Voting Preference
Shares and Serial Preferred Shares in proportion to the full
preferential amount to which each such share is entitled.
(2) After payment to the holders of Voting Preference
Shares of the full preferential amounts as aforesaid, the
holders of Voting Preference Shares, 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 entity, the merger of any other
corporation or entity into the Corporation, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation,
shall not be deemed to he a dissolution, liquidation or winding up for
the purposes of this Section.
SECTION 5. VOTING.
(a) The holders of Voting Preference Shares shall be entitled
at all times to one vote for each share and, except as otherwise
provided in this Section or required by law, the holders of Voting
Preference Shares and the holders of Common Shares shall vote together
as a class on all matters presented, subject, however, to the special
voting rights of the holders of Serial Preferred Shares as provided in
Section 5 of Division A hereof.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of the equivalent of the full dividends
on any series of Voting Preference Shares at the time
outstanding, whether or not earned or declared, for a number
of dividend payment periods (whether or not consecutive) which
in the aggregate contain at least 540 days, the holders of
Voting Preference Shares of all series, voting together as one
separate class, shall be entitled to elect, as herein
provided, two members of the Board of Directors of the
Corporation; provided, however, that the holders of Voting
Preference Shares shall not have or exercise such special
class voting rights except at meetings of such shareholders
for the election of directors at which the holders of not less
than 50% of the Voting Preference Shares of all series then
outstanding are present in person or by proxy; and provided
further that the special class voting rights provided for in
this paragraph when the same shall have become vested shall
remain so vested until all accrued and unpaid dividends on
Voting Preference
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Shares of all series then outstanding shall have been paid,
whereupon the holders of Voting Preference Shares 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 on another default of the
type specified in this paragraph.
(2) In the event of default entitling the holders of
Voting Preference Shares to elect two directors as specified
in paragraph (1) of this Subsection, a special meeting of such
holders 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 10% of Voting Preference Shares 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 called to be held within 120
days after the date of receipt of the foregoing written
request from the holders of Voting Preference Shares; provided
further, however, that if that annual meeting is not so held
within such 120 day period, a special meeting shall be called
as soon as is practicable after the Corporation becomes aware
that such annual meeting will not be so held. At any meeting
at which the holders of Voting Preference Shares shall be
entitled to elect directors, the holders of 50% of Voting
Preference Shares of all series at the time outstanding,
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 Voting
Preference Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Second Amended and
Restated Articles of Incorporation or the Code of Regulations
of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the
Corporation, the two directors who may be elected by the
holders of Voting Preference Shares pursuant to this
Subsection shall serve in addition to any other directors then
in office or proposed to be elected otherwise than pursuant to
this Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number or
classifications of directors of the Corporation nor require
the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the
two directors elected by the holders of Voting Preference
Shares shall be elected annually for terms expiring at the
next succeeding annual meeting of shareholders.
(3) The terms of office of all directors then in
office elected by holders of Voting Preference Shares as
provided in this Subsection shall terminate immediately upon
the expiration of the term of office during which occurs any
divesting of the special class voting rights of these holders.
If the office of any director elected by such holders becomes
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vacant by reason of death, resignation, removal from office or
otherwise, the holders of a majority of Voting Preference
Shares of all series at the time outstanding, present in
person or by proxy at a special meeting of shareholders called
and held in accordance with Subsection (2) above, shall elect
a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(c) The affirmative vote of the holders of at least two-thirds
of Voting Preference Shares at the time outstanding, voting together as
one separate class, shall be necessary to effect any one or more of the
following (but so far as the holders of Voting Preference Shares are
concerned, such action may be effected with such vote or consent):
(1) The sale, lease or conveyance by the Corporation
of all or substantially all of its assets;
(2) The merger or consolidation of the Corporation
into or with any other corporation or the merger of any other
corporation into it;
(3) The voluntary liquidation, dissolution or winding
up of the affairs of the Corporation:
(4) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Second Amended and Restated Articles of Incorporation
or of the Code of Regulations of the Corporation which affects
adversely the preferences or voting or other rights of the
holders of Voting Preference Shares; provided, however, that
for the purpose of this paragraph only, neither the amendment
of the Second Amended and Restated Articles of Incorporation
so as to authorize, create or change the authorized or
outstanding number of Voting Preference Shares or of any
shares ranking on a parity with or junior to Voting Preference
Shares nor the amendment of the provisions of the Code of
Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely the preferences or voting or other rights of the
holders of Voting Preference Shares; and provided further,
that if such amendment, alteration or repeal affects adversely
the preferences or voting or other rights of one or more but
not all series of Voting Preference Shares 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;
(5) The authorization, creation or increase in the
authorized number of any shares, or of any security
convertible into shares, in either case ranking prior to
Voting Preference Shares; or
(6) The purchase or redemption (for sinking fund
purposes or otherwise) of less than all Voting Preference
Shares then outstanding except in accordance with a stock
purchase offer made to all holders of
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record of Voting Preference Shares, unless all dividends on
all Voting Preference Shares then outstanding for all previous
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.
SECTION 6. DEFINITIONS. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to
Voting Preference Shares," such reference shall mean 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 the rights of the
holders of Voting Preference Shares;
(b) Whenever reference is made to shares "on a parity with
Voting Preference Shares," such reference shall mean all Serial
Preferred Shares and all other 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 rank equally (except as to the amounts fixed therefor) with
the rights of the holders of Voting Preference Shares; and
(c) Whenever reference is made to shares "ranking junior to
Voting Preference Shares," such reference shall mean all shares of the
Corporation other than those defined under Subsections (a) and (b) of
this Section as shares "ranking prior to" or "on a parity with" Voting
Preference Shares.
DIVISION C
The Common Shares shall have the following express terms:
The Common Shares shall be subject to the express terms of
Voting Preference Shares and any series thereof and to the express
terms of Serial Preferred Shares and any series thereof. Each Common
Share shall be equal to each other Common Share and the holders thereof
shall be entitled to one vote for each Common Share on all matters
presented to the shareholders of the Corporation.
Each Common Share issued and outstanding immediately prior to
the filing of these Second Amended and Restated Articles of
Incorporation shall be changed into 62.6766 Common Shares with any
fractional Common Share to which a holder would otherwise be entitled
being rounded up to the next whole share.
FIFTH: No holder of shares of the Corporation of any class
shall be entitled as such, as a matter of right, to subscribe for or purchase
shares of the Corporation of any class, now or hereafter authorized, or to
subscribe for or purchase securities convertible into or exchangeable for shares
of the Corporation of any class or to which shall be attached or appertain any
warrants or rights entitling the holder thereof to
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subscribe for or purchase shares of the Corporation of any class, except such
rights of subscription or purchase, if any, for such considerations and upon
such terms and conditions as its Board of Directors from time to time may
determine.
SIXTH: To the extent permitted by law, the Corporation, by
action of its Board of Directors and without action by its shareholders, may
purchase or otherwise acquire shares of any class issued by it at such times,
for such consideration and upon such terms and conditions as its Board of
Directors may determine.
SEVENTH: Except as otherwise provided in these Second Amended
and Restated Articles of Incorporation or the Code of Regulations of the
Corporation, notwithstanding any provision of Sections 1701.01 to 1701.98,
inclusive, of the Ohio Revised Code and any amendments heretofore or hereafter
made thereto, requiring for any purpose the vote, consent, waiver, or release of
the holders of shares entitling them to exercise two-thirds or any other
proportion of the voting power of the Corporation or of any class or classes of
shares thereof, any action may be taken by the vote of the holders of shares
entitling them to exercise a majority of the voting power of the Corporation, or
of such class or classes, unless the proportion designated by such statute
cannot be altered by these Second Amended and Restated Articles of
Incorporation.
EIGHTH: No shareholder may cumulate such shareholder's voting
power in the election of directors.
NINTH: Section 1701.831 of the Ohio Revised Code shall not
apply to control share acquisitions of the shares of the Corporation. Chapter
1704 of the Ohio Revised Code shall not apply to the Corporation.
TENTH: These Second Amended and Restated Articles of
Incorporation shall supersede and take the place of the heretofore existing
Amended and Restated Articles of Incorporation and all amendments thereto.
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