Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DEVELOPERS DIVERSIFIED REALTY CORPORATION
The undersigned, desiring to form a corporation for profit
under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code, does
hereby certify:
FIRST: The name of the Corporation shall be Developers
Diversified Realty Corporation.
SECOND: The place in the State of Ohio where the principal
office of the Corporation is located is Beachwood, 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.
FOURTH: The authorized number of shares of the Corporation is
109,000,000, consisting of 100,000,000 Common Shares, without par value
(hereinafter called "Common Shares"), 750,000 Class A Cumulative Preferred
Shares, without par value (hereinafter called "Class A Shares"), 750,000 Class B
Cumulative Preferred Shares, without par value (hereinafter called "Class B
Shares"), 750,000 Class C Cumulative Preferred Shares, without par value
(hereinafter called "Class C Shares"), 750,000 Class D Cumulative Preferred
Shares, without par value (hereinafter called "Class D Shares"), 750,000 Class E
Cumulative Preferred Shares, without par value (hereinafter called "Class E
Shares"), 750,000 Class F Cumulative Preferred Shares, without par value
(hereinafter called "Class F Shares"), 750,000 Class G Cumulative Preferred
Shares, without par value (hereinafter called "Class G Shares"), 750,000 Class H
Cumulative Preferred Shares, without par value (hereinafter called "Class H
Shares"), 750,000 Class I Cumulative Preferred Shares, without par value
(hereinafter called "Class I Shares"), 750,000 Class J Cumulative Preferred
Shares, without par value (hereinafter called "Class J Shares"), 750,000 Class K
Cumulative Preferred Shares, without par value (hereinafter called "Class K
Shares"), and 750,000 Noncumulative Preferred Shares, without par value
(hereinafter called "Noncumulative Shares"). The Class A Shares, Class B Shares,
Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares and Class K Shares are sometimes
collectively referred to herein as the "Cumulative Shares."
DIVISION A
I. The Class A Cumulative Preferred Shares. The Class A Shares
shall have the following express terms:
Section 1. Series. The Class A Shares may be issued from time
to time in one or more series. All Class A 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 Class A Shares shall rank on a parity with the Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K
Shares and Noncumulative Shares and shall be identical to all Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K
Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a)
through (i), inclusive, of this Section 1 and (2) only dividends on the
Cumulative Shares shall be cumulative as set forth herein. Subject to
the provisions of Sections 2 through 5, both inclusive, and Item XIII
of this Division, which provisions shall apply to all Class A 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and 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;
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(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(d) or 5(e) of this Item I) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class A Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class A Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class A Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class A Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class B Shares, Class C Shares, Class D Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class A Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class A Shares, shall be paid or declared or any
distribution be made, except as
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aforesaid, in respect of the Common Shares or any other shares ranking
junior to the Class A Shares, nor shall any Common Shares or any other
shares ranking junior to the Class A 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 the Class A Shares received by the Corporation subsequent to
the date of first issuance of Class A Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the then
current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item I.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class A Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to designate
as "capital gain dividends" (as defined in Section 857 of the Code) any
portion (the "Capital Gains Amount") of the dividends paid or made
available for the year to holders of all classes of stock (the "Total
Dividends"), then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for the
dividends paid deduction under Section 561 of the Code, the portion of
the Capital Gains Amount that shall be allocable to holders of the
Class A Shares shall be the amount that the total dividends paid or
made available to the holders of the Class A Shares for the year bears
to the Total Dividends.
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Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class A
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item I; and
(2) Shall, from time to time, make such redemptions of
each series of Class A 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 price fixed in accordance with
the provisions of Section 1 of this Item I; and shall in each case 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 the Class A 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 Item I 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 Class A 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 the Class A Shares so to be redeemed amounts
equal to the redemption price of the Class A 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. In the event less than all of the outstanding
Class A 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 Class A Shares which have been
called for redemption shall not within six 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.
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(c) Any Class A 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 Class A Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class A Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class A Shares, unless
all dividends on all Class A Shares then outstanding for all previous
and current 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 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 Class A 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 Shares or any other shares ranking
junior to the Class A Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item I, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class A Shares of the
full preferential amounts as aforesaid, the holders of Class A 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, the merger of any other Corporation into
it, 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.
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Section 5. Voting.
(a) The holders of Class A 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 dividends on any series of Class A Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class A
Shares, voting separately as a class, together with all Class B Shares,
Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class A Shares shall not
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 such Class A Shares 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 such Class A Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class A 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 in the event above
specified in this paragraph.
(2) In the event of default entitling holders of Class A
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 the Class A Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class A
Shares. At any meeting at which such holders of Class A Shares shall be
entitled to elect directors, holders of 50% of such Class A Shares,
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 such
holders of Class A Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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
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the Corporation, the two directors who may be elected by such holders
of Class A 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 or 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 such holders of Class
A Shares shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class A Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class A Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and Noncumulative Shares then entitled to vote
shall be combined (with each class of shares having a number of votes
proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class A Shares and of all such
other shares then entitled so to vote, voting as a class, shall elect
such directors. If the holders of any such other shares have elected
such directors prior to the happening of the default or event
permitting the holders of Class A Shares to elect directors, or prior
to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class A
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class A Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the
8
Corporation which affects adversely and materially the preferences or
voting or other rights of the holders of Class A Shares which are set
forth in these Amended and Restated Articles of Incorporation, as
amended; provided, however, neither the amendment of these Amended and
Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class A Shares
or of any shares ranking on a parity with or junior to the Class A
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 and materially
preferences or voting or other rights of the holders of Class A Shares;
or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class A Shares.
(e) In the event, and only to the extent, that (1) Class A
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class A Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class A Shares or of any shares ranking on a parity with or junior to
the Class A 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 and materially
the preferences or voting or other rights of the holders of such
series.
Section 6. 9 1/2% Class A Cumulative Redeemable Preferred Shares. Of
the 750,000 authorized Class A Shares, 460,000 shares are designated as a
series entitled "9 1/2% Class A Cumulative Redeemable Preferred Shares"
(hereinafter called "9 1/2% Class A Preferred Shares"). The 9 1/2% Class A
Preferred Shares shall have the express terms set forth in this Item I as
being applicable to all Class A Shares as a class and, in addition, the
following express terms applicable to all 9 1/2% Class A Preferred Shares as
a series of Class A Shares:
(a) The annual dividend rate of the 9 1/2% Class A Preferred
Shares shall be 9 1/2% of the liquidation preference of $250.00 per
share.
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(b) Dividends on the 9 1/2% Class A Preferred Shares shall be
payable, if declared, quarterly on or about the 15th day of March,
June, September, and December each year, the first quarterly dividend
being payable, if declared, on December 15, 1995. The dividends payable
for each full quarterly dividend period on each 9 1/2% Class A
Preferred Share shall be $5.94.
Dividends for the initial dividend period on the 9 1/2% Class
A Preferred Shares, or for any period shorter or longer than a full
dividend period on the 9 1/2% Class A Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of 9
1/2% Class A Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each
dividend shall be payable to the holders of record on such record date,
no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board
of Directors.
(c) Dividends on 9 1/2% Class A Preferred Shares shall be
cumulative as follows:
(1) With respect to shares included in the initial issue
of 9 1/2% Class A Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment of the
first dividend on the initial issue of 9 1/2% Class A Preferred Shares,
dividends shall be cumulative from the date of the initial issue of 9
1/2% Class A Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares, except
that if such shares are issued during the period commencing the day
after the record date for the payment of a dividend on 9 1/2% Class A
Preferred Shares and ending on the payment date of that dividend,
dividends with respect to such shares shall be cumulative from that
dividend payment date.
(d) Except as required to preserve the Corporation's status as
a real estate investment trust under the Internal Revenue Code of 1986,
as amended, the 9 1/2% Class A Preferred Shares may not be redeemed
prior to November 15, 2000. At any time or from time to time on and
after November 15, 2000 the Corporation, at its option upon not less
than thirty (30) nor more than sixty (60) days' written notice, may
redeem all or any part of the 9 1/2% Class A Preferred Shares at a
redemption price of $250.00 per share plus, in each case, an amount
equal to all dividends accrued and unpaid thereon to the redemption
date, without interest. The redemption price (other than the portion
thereof consisting of accrued and unpaid dividends) is payable solely
out of the sale proceeds of other capital shares of the Corporation,
which may include any equity securities (including common shares and
preferred shares), shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt
securities
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convertible into or exchangeable for equity securities), or options to
purchase any of the foregoing.
(e) The amount payable per 9 1/2% Class A Preferred Share in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation shall be $250.00, plus an
amount equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 9 1/2% Class A Preferred
Shares, at any time during which the Corporation is in default in the
payment of dividends on such 9 1/2% Class A Preferred Shares for any
dividend period, shall, for the purposes of Section 5(b)(1) of this
Item I, be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
II. The Class B Cumulative Preferred Shares. The Class B Cumulative
Preferred Shares shall have the following express terms:
Section 1. Series. The Class B Shares may be issued from time to time
in one or more series. All Class B 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 Class B Shares
shall rank on a parity with the Class A Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares and
shall be identical to all Class A Shares, Class C Shares, Class D Shares,
Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except (1)
in respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and (2)
only dividends on the Cumulative Shares are cumulative as set forth herein.
Subject to the provisions of Sections 2 through 5, both inclusive, and Item
XIII of this Division, which provisions shall apply to all Class B 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);
(c) The dividend rate or rates of the series, including the
means by which such rates may be established;
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(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
such dates and periods may be established;
(e) The redemption rights and 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(d) or 5(e) of this Item II) 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 Amended and Restated Articles of Incorporation, as amended,
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 Class B Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class B Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class B Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class B Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to the Noncumulative Shares, only with respect to
the then current
12
dividend period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class A Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares then issued and
outstanding and entitled to receive such dividends.
(b) So long as any Class B Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class B 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 the Class B Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
B 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 the Class B Shares
received by the Corporation subsequent to the date of first issuance of
Class B Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item II.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption, retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class B Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under
13
the Code and to the extent that it does not cause any dividends to fail
to qualify for the dividends paid deduction under Section 561 of the
Code, the portion of the Capital Gains Amount that shall be allocable
to holders of the Class B Shares shall be the amount that the total
dividends paid or made available to the holders of the Class B Shares
for the year bears to the Total Dividends.
14
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class B
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item II; and
(2) Shall, from time to time, make such redemptions of
each series of Class B 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 price fixed in accordance with
the provisions of Section 1 of this Item II; and shall in each case 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 the Class B 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 Item II 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 Class B 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 the Class B Shares so to be redeemed amounts
equal to the redemption price of the Class B 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. In the event less than all of the outstanding
Class B 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 Class B Shares which have been
called for redemption shall not within six 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.
15
(c) Any Class B 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 Class B Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class B Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class B Shares, unless
all dividends on all Class B Shares then outstanding for all previous
and current 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 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 Class B 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 Shares or any other shares ranking
junior to the Class B Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item II, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class B Shares of the
full preferential amounts as aforesaid, the holders of Class B 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, the merger of any other corporation into
it, 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.
16
Section 5. Voting.
(a) The holders of Class B 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 dividends on any series of Class B Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of Class B Shares,
voting separately as a class, together with all Class A Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred
and are exercisable under the circumstances described in Subsection
5(c), shall be entitled to elect, as herein provided, a total of two
members of the Board of Directors of the Corporation; provided,
however, that the holders of such Class B Shares shall not 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 such Class B Shares 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 such Class B Shares
then outstanding shall have been paid or declared and a sum sufficient
therefor set aside for payment, whereupon the holders of such Class B
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 in the event above specified in
this paragraph.
(2) In the event of default entitling holders of Class B
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 the Class B Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class B
Shares. At any meeting at which such holders of Class B Shares shall be
entitled to elect directors, holders of 50% of such Class B Shares,
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 such
holders of Class B Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class B
17
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 such holders of Class
B Shares shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting rights of
the holders of the Class B Shares in respect of elections of directors
as provided in this Subsection, the terms of office of all directors
then in office elected by such holders shall terminate immediately
thereupon. If the office of any director elected by such holders voting
as a class becomes vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected by such holders
voting as a class may elect a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class B Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with class of shares having a number of votes
proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class B Shares and of all such
other shares then entitled so to vote, voting as a class, shall elect
such directors. If the holders of any such other shares have elected
such directors prior to the happening of the default or event
permitting the holders of Class B Shares to elect directors, or prior
to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class B
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class B Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or
18
other rights of the holders of Class B Shares which are set forth in
these Amended and Restated Articles of Incorporation, as amended;
provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class B Shares or of any
shares ranking on a parity with or junior to the Class B 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 and materially preferences or voting or
other rights of the holders of Class B Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such Class B Shares.
(e) In the event, and only to the extent, that (1) Class B
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class B Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class B Shares or of any shares remaining on a parity with or junior to
the Class B 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 and materially
preferences or voting or other rights of the holders of such series.
Section 6. 9.44% Class B Cumulative Redeemable Preferred Shares. Of the
750,000 authorized Class B Shares, 177,500 shares are designated as a series
entitled "9.44% Class B Cumulative Redeemable Preferred Shares" (hereinafter
called "9.44% Class B Preferred Shares"). The 9.44% Class B Preferred Shares
shall have the express terms set forth in this Item II as being applicable
to all Class B Shares as a class and, in addition, the following express
terms applicable to all 9.44% Class B Preferred Shares as a series of Class
B Shares:
(a) The annual dividend rate of the 9.44% Class B Preferred
Shares shall be 9.44% of the liquidation preference of $250.00 per
share.
(b) Dividends on the 9.44% Class B Preferred Shares shall be
payable, if declared, quarterly on or about the 15th day of March,
June, September, and
19
December each year, the first quarterly dividend being payable, if
declared, on March 15, 1996. The dividends payable for each full
quarterly dividend period on each 9.44% Class B Preferred Share shall
be $5.90.
Dividends for the initial dividend period on the 9.44% Class B
Preferred Shares, or for any period shorter or longer than a full
dividend period on the 9.44% Class B Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of
9.44% Class B Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each
dividend shall be payable to the holders of record on such record date,
no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board
of Directors.
(c) Dividends on 9.44% Class B Preferred Shares shall be
cumulative as follows:
(1) With respect to shares included in the initial issue
of 9.44% Class B Preferred Shares and shares issued any time thereafter
up to and including the record date for the payment of the first
dividend on the initial issue of 9.44% Class B Preferred Shares,
dividends shall be cumulative from the date of the initial issue of
9.44% Class B Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares, except
that if such shares are issued during the period commencing the day
after the record date for the payment of a dividend on 9.44% Class B
Preferred Shares and ending on the payment date of that dividend,
dividends with respect to such shares shall be cumulative from that
dividend payment date.
(d) Except as required to preserve the Corporation's status as
a real estate investment trust under the Internal Revenue Code of 1986,
as amended, the 9.44% Class B Preferred Shares may not be redeemed
prior to December 26, 2000. At any time or from time to time on and
after December 26, 2000 the Corporation, at its option upon not less
than thirty (30) nor more than sixty (60) days' written notice, may
redeem all or any part of the 9.44% Class B Preferred Shares at a
redemption price of $250.00 per share plus, in each case, an amount
equal to all dividends accrued and unpaid thereon to the redemption
date, without interest. The redemption price (other than the portion
thereof consisting of accrued and unpaid dividends) is payable solely
out of the sale proceeds of other capital shares of the Corporation,
which may include any equity securities (including common shares and
preferred shares), shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities), or
options to purchase any of the foregoing.
20
(e) The amount payable per 9.44% Class B Preferred Share in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation shall be $250.00, plus an
amount equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 9.44% Class B Preferred
Shares, at any time during which the Corporation is in default in the
payment of dividends on such 9.44% Class B Preferred Shares for any
dividend period, shall, for the purposes of Section 5(b)(1) of this
Item II, be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.
III. The Class C Cumulative Preferred Shares. The Class C Shares shall have
the following express terms:
Section 1. Series. The Class C Shares may be issued from time to time
in one or more series. All Class C 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 Class C Shares shall rank
on a parity with the Class A Shares, Class B Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares and Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class
K Shares and Noncumulative Shares except (1) in respect of the matters that
may be fixed by the Board of Directors as provided in clauses (a) through
(i), inclusive, of this Section 1 and (2) only dividends on Cumulative Shares
shall be cumulative as set forth herein. Subject to the provisions of
Sections 2 through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class C 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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,
21
shall be payable, including the means by which such dates and periods
may be established;
(e) The redemption rights and 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(d) or 5(e) of this Item III) 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 Amended and Restated Articles of Incorporation, as
amended, fixing, with respect to each such series, the matters described in
clauses (a) through (i), 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 Class C Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class C Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class C Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class C Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares,
22
Class B Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares then issued and outstanding and entitled to
receive such dividends.
(b) So long as any Class C Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class C 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 the Class C Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
C 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 the Class C Shares
received by the Corporation subsequent to the date of first issuance of
Class C Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item III.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class C Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
23
of the Capital Gains Amount that shall be allocable to holders of the
Class C Shares shall be the amount that the total dividends paid or
made available to the holders of the Class C Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class C
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item III; and
(2) Shall, from time to time, make such redemptions of
each series of Class C 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 price fixed in accordance with
the provisions of Section 1 of this Item III; and shall in each case
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 the Class C 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 Item III 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 Class C
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 the Class C Shares so to be
redeemed amounts equal to the redemption price of the Class C 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. In the event less than all of the
outstanding Class C 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 Class C Shares which have been
called for redemption shall not within six years after such deposit
claim the amount
24
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 Class C 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 Class C Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class C Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class C Shares, unless
all dividends on all Class C Shares then outstanding for all previous
and current 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 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 Class C 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 Shares or any other shares ranking
junior to the Class C Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item III, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class C Shares of the
full preferential amounts as aforesaid, the holders of Class C Shares,
as such, shall have no right or claim to any of the remaining assets of
the Corporation.
25
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other Corporation into
it, 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 Class C 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 dividends on any series of Class C Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class C
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class C Shares shall not
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 such Class C Shares 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 such Class C Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class C 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 in the event above
specified in this paragraph. All dividend payments made on the Class C
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class C Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class C
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 the Class C Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class C
26
Shares. At any meeting at which such holders of Class C Shares shall be
entitled to elect directors, holders of 50% of such Class C Shares,
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 such
holders of Class C Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class C 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 or 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 such holders of Class C Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class C Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class C Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class C Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class C Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class C
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
27
(d) The affirmative vote of the holders of at least two-thirds
of the Class C Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class C Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class C Shares or of any shares ranking on a
parity with or junior to the Class C 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 and materially preferences or voting or other rights
of the holders of Class C Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class C Shares.
(e) In the event, and only to the extent, that (1) Class C
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class C Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class C Shares or of any shares ranking on a parity with or junior to
the Class C 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 and materially
the preferences or voting or other rights of the holders of such
series.
Section 6. 8 3/8% Class C Cumulative Redeemable Preferred Shares. Of
the 750,000 authorized Class C Shares, 460,000 shares are designated as a
series entitled "8 3/8% Class C Cumulative Redeemable Preferred Shares"
(hereinafter called "8 3/8% Class C Preferred Shares"). The 8 3/8% Class C
Preferred Shares shall have the express
28
terms set forth in this Division as being applicable to all Class C
Shares as a class and, in addition, the following express terms
applicable to all 8 3/8% Class C Preferred Shares as a series of Class C
Shares:
(a) The annual dividend rate of the 8 3/8% Class C Preferred
Shares shall be 8 3/8% of the liquidation preference of $250.00 per
share.
(b) Dividends on the 8 3/8% Class C Preferred Shares shall be
payable, if declared, quarterly on or about the fifteenth day of March,
June, September, and December each year, the first quarterly dividend
being payable, if declared, on September 15, 1998. The dividends
payable for each full quarterly dividend period on each 8 3/8% Class C
Preferred Share shall be $5.234375.
Dividends for the initial dividend period on the 8 3/8% Class
C Preferred Shares, or for any period shorter or longer than a full
dividend period on the 8 3/8% Class C Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of
8 3/8% Class C Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each
dividend shall be payable to the holders of record on such record date,
no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board
of Directors.
(c) Dividends on 8 3/8% Class C Preferred Shares shall be
cumulative as follows:
(1) With respect to shares included in the initial issue
of 8 3/8% Class C Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment of the
first dividend on the initial issue of 8 3/8% Class C Preferred Shares,
dividends shall be cumulative from the date of the initial issue of
8 3/8% Class C Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares, except
that if such shares are issued during the period commencing the day
after the record date for the payment of a dividend on 8 3/8% Class C
Preferred Shares and ending on the payment date of that dividend,
dividends with respect to such shares shall be cumulative from that
dividend payment date.
(d) Except as required to preserve the Corporation's status as
a real estate investment trust under the Internal Revenue Code of 1986,
as amended, the 8 3/8% Class C Preferred Shares may not be redeemed
prior to July 7, 2003. At any time or from time to time on and after
July 7, 2003 the Corporation, at its option upon not less than thirty
(30) nor more than sixty (60) days' written notice, may redeem all or
any part of the 8 3/8% Class C Preferred Shares at a redemption price
of $250.00 per share plus, in each case, an amount equal to all
dividends accrued and
29
unpaid thereon to the redemption date, without interest. The redemption
price (other than the portion thereof consisting of accrued and unpaid
dividends) is payable solely out of the sale proceeds of other capital
shares of the Corporation, which may include any equity securities
(including common shares and preferred shares), shares, interests,
participation or other ownership interests (however designated) and any
rights (other than debt securities convertible into or exchangeable for
equity securities), or options to purchase any of the foregoing.
(e) The amount payable per 8 3/8% Class C Preferred Share in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation shall be $250.00, plus an
amount equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 8 3/8% Class C Preferred
Shares, at any time during which the Corporation is in default in the
payment of dividends on such 8 3/8% Class C Preferred Shares for any
dividend period, shall, for the purposes of Section 5(b)(1) of this
Division A-III, be deemed to be made in respect of the earliest
dividend period with respect to which the Corporation is in default.
IV. The Class D Cumulative Preferred Shares. The Class D Shares shall have
the following express terms:
Section 1. Series. The Class D Shares may be issued from time to time
in one or more series. All Class D 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 Class D Shares shall rank
on a parity with the Class A Shares, Class B Shares, Class C Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares and Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class
K Shares and Noncumulative Shares except (1) in respect of the matters that
may be fixed by the Board of Directors as provided in clauses (a) through
(i), inclusive, of this Section 1 and (2) only dividends on Cumulative Shares
shall be cumulative as set forth herein. Subject to the provisions of
Sections 2 through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class D 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
30
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 such rates 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
such dates and periods may be established;
(e) The redemption rights and 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(d) or 5(e) of this Item IV) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class D Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class D Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class D Shares for any
dividend period unless at the same time (i) a like proportionate
dividend for
31
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
Class D Shares of all series then issued and outstanding and entitled
to receive such dividend and (ii) the dividends payable for the
dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current
dividend period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class A Shares, Class B Shares, Class C Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares then issued and
outstanding and entitled to receive such dividends.
(b) So long as any Class D Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class D 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 the Class D Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
D 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 the Class D Shares
received by the Corporation subsequent to the date of first issuance of
Class D Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item IV.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class D Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as
32
amended, with respect to any other class or series of capital stock
hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class D Shares shall be the amount that the total dividends paid or
made available to the holders of the Class D Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class D
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item IV; and
(2) Shall, from time to time, make such redemptions of
each series of Class D 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 price fixed in accordance with
the provisions of Section 1 of this Item IV; and shall in each case 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 the Class D 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 Item IV 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 Class D 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 the Class D Shares so to be redeemed amounts
equal to the redemption price of the Class D 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
33
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. In the event less than all of the outstanding
Class D 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 Class D Shares which have been
called for redemption shall not within six 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 Class D 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 Class D Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class D Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class D Shares, unless
all dividends on all Class D Shares then outstanding for all previous
and current 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 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 Class D 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 Shares or any other shares ranking
junior to the Class D Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item IV, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
34
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class D Shares of the
full preferential amounts as aforesaid, the holders of Class D 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, the merger of any other Corporation into
it, 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 Class D 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 dividends on any series of Class D Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class D
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class D Shares shall not
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 such Class D Shares 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 such Class D Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class D 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 in the event above
specified in this paragraph. All dividend payments made on the Class D
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class D Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class D
Shares to elect two directors as specified in paragraph (1) of this
Subsection, a special meeting of
35
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 the Class D Shares
upon which such default in the payment of dividends exists 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 90 days after
the date of receipt of the foregoing written request from the holders
of Class D Shares. At any meeting at which such holders of Class D
Shares shall be entitled to elect directors, holders of 50% of such
Class D Shares, 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 such holders of Class D Shares are entitled to elect as
herein provided. Notwithstanding any provision of these Amended and
Restated Articles of Incorporation, as amended, 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 such holders of Class D 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 or 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 such holders of Class
D Shares shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class D Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class D Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class D Shares and of
all such other shares then entitled so to vote,
36
voting as a class, shall elect such directors. If the holders of any
such other shares have elected such directors prior to the happening of
the default or event permitting the holders of Class D Shares to elect
directors, or prior to a written request for the holding of a special
meeting being received by the Secretary of the Corporation as required
above, then a new election shall be held with all such other shares and
the Class D Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously
elected directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class D Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class D Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class D Shares or of any shares ranking on a
parity with or junior to the Class D 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 and materially preferences or voting or other rights
of the holders of Class D Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class D Shares.
(e) In the event, and only to the extent, that (1) Class D
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class D Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class D Shares or of any shares ranking on a parity with or junior to
the Class D Shares nor the
37
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 and materially the preferences or voting or
other rights of the holders of such series.
Section 6. 8.68% Class D Cumulative Redeemable Preferred Shares. Of the
750,000 authorized Class D Shares, 230,000 shares are designated as a series
entitled "8.68% Class D Cumulative Redeemable Preferred Shares" (hereinafter
called "8.68% Class D Preferred Shares"). The 8.68% Class D Preferred Shares
shall have the express terms set forth in this Division as being applicable to
all Class D Shares as a class and, in addition, the following express terms
applicable to all 8.68% Class D Preferred Shares as a series of Class D Shares:
(a) The annual dividend rate of the 8.68% Class D Preferred
Shares shall be 8.68% of the liquidation preference of $250.00 per
share.
(b) Dividends on the 8.68% Class D Preferred Shares shall be
payable, if declared, quarterly on or about the fifteenth day of March,
June, September, and December each year, the first quarterly dividend
being payable, if declared, on December 15, 1998. The dividends payable
for each full quarterly dividend period on each 8.68% Class D Preferred
Share shall be $5.425.
Dividends for the initial dividend period on the 8.68% Class D
Preferred Shares, or for any period shorter or longer than a full
dividend period on the 8.68% Class D Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of
8.68% Class D Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each
dividend shall be payable to the holders of record on such record date,
no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board
of Directors.
(c) Dividends on 8.68% Class D Preferred Shares shall be
cumulative as follows:
(1) With respect to shares included in the initial issue
of 8.68% Class D Preferred Shares and shares issued any time thereafter
up to and including the record date for the payment of the first
dividend on the initial issue of 8.68% Class D Preferred Shares,
dividends shall be cumulative from the date of the initial issue of
8.68% Class D Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares, except
that if such shares are issued during the period commencing the day
after the record date for the payment of a dividend on 8.68 % Class D
Preferred Shares and ending on the payment date of
38
that dividend, dividends with respect to such shares shall be
cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's status as
a real estate investment trust under the Internal Revenue Code of 1986,
as amended, the 8.68% Class D Preferred Shares may not be redeemed
prior to August 20, 2003. At any time or from time to time on and after
August 20, 2003 the Corporation, at its option upon not less than
thirty (30) nor more than sixty (60) days' written notice, may redeem
all or any part of the 8.68% Class D Preferred Shares at a redemption
price of $250.00 per share plus, in each case, an amount equal to all
dividends accrued and unpaid thereon to the redemption date, without
interest. The redemption price (other than the portion thereof
consisting of accrued and unpaid dividends) is payable solely out of
the sale proceeds of other capital shares of the Corporation, which may
include any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities), or options to
purchase any of the foregoing.
(e) The amount payable per 8.68% Class D Preferred Share in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation shall be $250.00, plus an
amount equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 8.68% Class D Preferred
Shares, at any time during which the Corporation is in default in the
payment of dividends on such 8.68% Class D Preferred Shares for any
dividend period, shall, for the purposes of Section 5(b)(1) of this
Division A-IV, be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.
V. The Class E Cumulative Preferred Shares. The Class E Shares shall have
the following express terms:
Section 1. Series. The Class E Shares may be issued from time to time
in one or more series. All Class E 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 Class E Shares
shall rank on a parity with the Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares and
shall be identical to all Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except (1)
in respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and (2)
only dividends on Cumulative Shares shall be cumulative as set forth herein.
Subject to the provisions of Sections 2 through 5, both inclusive, and Item
XIII of this Division, which provisions shall apply to
39
all Class E 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and 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(d) or 5(e) of this Item V) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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.
40
Section 2. Dividends.
(a) The holders of Class E Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class E Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class E Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class E Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class E Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class E 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 the Class E Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
E 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 the Class E Shares
received by the Corporation subsequent to the date of first issuance of
Class E Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund
41
provided for shares of such series in accordance with the provisions of
Section 1 of this Item V.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class E Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class E Shares shall be the amount that the total dividends paid or
made available to the holders of the Class E Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class E
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item V; and
(2) Shall, from time to time, make such redemptions of
each series of Class E 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 price fixed in accordance with
the provisions of Section 1 of this Item V; and shall in each case 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 the Class E 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 Item V prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may
deposit the
42
aggregate redemption price of Class E 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 the
Class E Shares so to be redeemed amounts equal to the redemption price
of the Class E 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. In the
event less than all of the outstanding Class E 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 Class E Shares which have been
called for redemption shall not within six 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 Class E 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 Class E Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class E Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class E Shares, unless
all dividends on all Class E Shares then outstanding for all previous
and current 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.
43
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 Class E 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 Shares or any other shares ranking
junior to the Class E Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item V, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class E Shares of the
full preferential amounts as aforesaid, the holders of Class E 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, the merger of any other Corporation into
it, 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 Class E 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 dividends on any series of Class E Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class E
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class E Shares shall not
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 such Class E Shares are present in person or by proxy;
and provided
44
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 such Class E Shares then
outstanding shall have been paid or declared and a sum sufficient for
the payment thereof set aside for payment, whereupon the holders of
such Class E 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 in the event above
specified in this paragraph. All dividend payments made on the Class E
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class E Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class E
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 the Class E Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class E
Shares. At any meeting at which such holders of Class E Shares shall be
entitled to elect directors, holders of 50% of such Class E Shares,
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 such
holders of Class E Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class E 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 or 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 such holders of Class E Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class E Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
45
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class E Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class E Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class E Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class E
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class E Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class E Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class E Shares or of any shares ranking on a
parity with or junior to the Class E 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 and materially preferences or voting or other rights
of the holders of Class E Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class E Shares.
46
(e) In the event, and only to the extent, that (1) Class E
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class E Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class E Shares or of any shares ranking on a parity with or junior to
the Class E 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 and materially
the preferences or voting or other rights of the holders of such
series.
Section 6. Class E Series I Cumulative Preferred Shares.
(a) DESIGNATION AND AMOUNT. Of the 750,000 authorized Class E
Cumulative Preferred Shares, without par value, 750,000 are designated
as a series designated as "Class E Series I Cumulative Preferred
Shares" (the "Series I Preferred Shares"). The Series I Preferred
Shares have the express terms set forth in this Division as being
applicable to all Preferred Shares as a class and, in addition, the
following express terms applicable to all Series I Preferred Shares as
a series of Preferred Shares. The number of Series I Preferred Shares
may be increased 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 I Preferred Shares to a
number less than that of the Series I Preferred Shares then outstanding
plus the number of Series I Preferred Shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Company.
(b) DIVIDENDS AND DISTRIBUTIONS.
(1) (i) Subject to the rights of the holders of any series
of preferred shares (or any similar shares) ranking prior to the Series
I Preferred Shares with respect to dividends, the holders of Series I
Preferred Shares, in preference to the holders of Common Shares and of
any other junior shares, will 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 fifteenth day
of March, June, September and December in each year (each such date
being
47
referred to herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first issuance
of a Series I Preferred Share or fraction thereof, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $10.00
or (b) subject to the provisions for adjustment hereinafter set forth,
10,000 times the aggregate per share amount of all cash dividends, and
10,000 times the aggregate per share amount (payable in kind) of all
noncash dividends or other distributions other than a dividend payable
in Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares after the
immediately preceding Quarterly Dividend Payment Date, or, with respect
to the first Quarterly Dividend Payment Date, after the first issuance
of any Series I Preferred Share or fraction thereof. The multiple of
cash and noncash dividends declared on the Common Shares to which
holders of the Series I Preferred Shares are entitled, which is 10,000
initially but which will be adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Dividend Multiple." If the
Company at any time after May 26, 1999 (the "Rights Declaration Date"):
(i) declares or pays any dividend on the Common Shares payable in
Common Shares, or (ii) effects a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a
greater or lesser number of Common Shares, then in each such case the
Dividend Multiple thereafter applicable to the determination of the
amount of dividends that holders of Series I Preferred Shares are
entitled to receive will be the Dividend Multiple applicable
immediately prior to that event multiplied by a fraction, the numerator
of which is the number of Common Shares outstanding immediately after
that event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to that event.
(ii) Notwithstanding anything else contained
in this paragraph (1), the Company shall, out of
funds legally available for that purpose, declare a
dividend or distribution on the Series I Preferred
Shares as provided in this paragraph (1) immediately
after it declares a dividend or distribution on the
Common Shares (other than a dividend payable in
Common Shares); but if no dividend or distribution
has 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 $10.00 per share on the Series I
Preferred Shares shall nevertheless accrue on such
subsequent Quarterly Dividend Payment Date.
(2) Dividends will begin to accrue and be cumulative on
outstanding Series I Preferred Shares from the Quarterly Dividend
Payment Date next preceding the date of issue of such Series I
Preferred Shares, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend
48
Payment Date, in which case dividends on such shares will 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 Series I Preferred
Shares entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends will begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends will not bear
interest. Dividends paid on the Series I Preferred Shares in an amount
less than the total amount of such dividends at the time accrued and
payable on such shares will be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board of
Directors may fix in accordance with applicable law a record date for
the determination of holders of Series I Preferred Shares entitled to
receive payment of a dividend or distribution declared thereon, which
record date will be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable law.
(c) REACQUIRED SHARES. Any Series I Preferred Shares purchased
or otherwise acquired by the Company in any manner whatsoever will be
retired and canceled promptly after the acquisition thereof. All such
shares will upon their cancellation become authorized but unissued
preferred shares and may be reissued as part of a new series of
Preferred Shares to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
(d) LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Company, no distribution may be made (x) to the holders of shares
ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series I Preferred Shares unless, prior thereto,
the holders of Series I Preferred Shares shall have received an amount
equal to 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 (1) $10,000.00 per share or (2) an aggregate
amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 10,000 times the aggregate amount to be distributed
per share to holders of Common Shares, or (y) to the holders of shares
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series I Preferred Shares, except
distributions made ratably on the Series I Preferred Shares and all
other such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation,
dissolution or winding up. If the Company at any time after the Rights
Declaration Date (i) declares or pays any dividend on Common Shares
payable in Common Shares, or (ii) effects a subdivision or combination
or consolidation of the outstanding Common Shares (by reclassification
or otherwise than by payment of a dividend in Common Shares) into a
greater or lesser number of Common Shares, then in each such case the
aggregate amount per share to which holders of Series I Preferred
Shares were entitled immediately prior to such event under clause (x)
of the preceding sentence will be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of Common Shares
outstanding immediately after such
49
event and the denominator of which is the number of Common Shares that
were outstanding immediately prior to such event.
Neither the consolidation of nor merging of the Company with
or into any other corporation or corporations, nor the sale or other
transfer of all or substantially all of the assets of the Company, will
be considered to be a liquidation, dissolution or winding up of the
Company within the meaning of this paragraph (d).
(e) CONSOLIDATION, MERGER, ETC. If the Company shall enter
into any consolidation, merger, combination or other transaction in
which the Common Shares are exchanged for or changed into other shares,
stock or securities, cash or any other property, then in any such case
the Series I Preferred Shares will at the same time be similarly
exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 10,000 times the
aggregate amount of shares, stock, securities, or other property, as
the case may be, into which or for which each Common Share is changed
or exchanged, plus accrued and unpaid dividends, if any, payable with
respect to the Series I Preferred Shares. If the Company at any time
after the Rights Declaration Date (i) declares or pays any dividend on
Common Shares payable in Common Shares, or (ii) effects a subdivision
or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each
such case the amount set forth in the preceding sentence with respect
to the exchange or change of Series I Preferred Shares will be adjusted
by multiplying such amount by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and
the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(f) REDEMPTION. The Series I Preferred Shares are not
redeemable, but the foregoing does not limit the ability of the Company
to purchase or otherwise deal in the Series I Preferred Shares to the
extent otherwise permitted hereby and by law.
(g) AMENDMENT. The Amended and Restated Articles of
Incorporation of the Company, as amended, may not be amended in any
manner that would materially alter or change the powers, preferences or
special rights of the Series I Preferred Shares so as to affect them
adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding Series I Preferred Shares, voting
separately as a class.
(h) FRACTIONAL SHARES. Series I Preferred Shares may be issued
in whole shares or in any fraction of a share that is one
ten-thousandth (1/10,000th) of a share or any integral multiple of such
fraction, which will entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights
of
50
holders of Series I Preferred Shares. In lieu of fractional shares, the
Company may elect to make a cash payment as provided in that certain
Rights Agreement dated as of May 26, 1999, between the Company and
National City Bank, a national banking association, as rights agent,
for fractions of a share smaller than one ten-thousandth (1/10,000th)
of a share or any integral multiple thereof.
VI. The Class F Cumulative Preferred Shares. The Class F Shares shall have
the following express terms:
Section 1. Series. The Class F Shares may be issued from time to time
in one or more series. All Class F 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 Class F Shares
shall rank on a parity with the Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares and
shall be identical to all Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except (1)
in respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and (2)
only dividends on Cumulative Shares shall be cumulative as set forth herein.
Subject to the provisions of Sections 2 through 5, both inclusive, and Item
XIII of this Division, which provisions shall apply to all Class F 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and price or prices, if any, for
shares of the series;
51
(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(d) or 5(e) of this Item VI) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class F Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class F Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class F Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class F Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
52
(b) So long as any Class F Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class F 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 the Class F Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
F 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 the Class F Shares
received by the Corporation subsequent to the date of first issuance of
Class F Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item VI.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class F Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class F Shares shall be the amount that the total dividends paid or
made available to the holders of the Class F Shares for the year bears
to the Total Dividends.
53
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class F
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item VI; and
(2) Shall, from time to time, make such redemptions of
each series of Class F 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 price fixed in accordance with
the provisions of Section 1 of this Item VI; and shall in each case 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 the Class F 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 Item VI 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 Class F 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 the Class F Shares so to be redeemed amounts
equal to the redemption price of the Class F 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. In the event less than all of the outstanding
Class F 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 Class F Shares which have been
called for redemption shall not within six 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.
54
(c) Any Class F 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 Class F Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class F Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class F Shares, unless
all dividends on all Class F Shares then outstanding for all previous
and current 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 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 Class F 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 Shares or any other shares ranking
junior to the Class F Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item VI, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class F Shares of the
full preferential amounts as aforesaid, the holders of Class F 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, the merger of any other Corporation into
it, 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.
55
Section 5. Voting.
(a) The holders of Class F 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 dividends on any series of Class F Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class F
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class F Shares shall not
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 such Class F Shares 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 such Class F Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class F 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 in the event above
specified in this paragraph. All dividend payments made on the Class F
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class F Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class F
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 the Class F Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class F
Shares. At any meeting at which such holders of Class F Shares shall be
entitled to elect directors, holders of 50% of such Class F Shares,
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 such
holders of Class F Shares are entitled to elect as herein provided.
56
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class F 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 or 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 such holders of Class F Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class F Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class F Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class F Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class F Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class F
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class F Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
57
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class F Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class F Shares or of any shares ranking on a
parity with or junior to the Class F 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 and materially preferences or voting or other rights
of the holders of Class F Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class F Shares.
(e) In the event, and only to the extent, that (1) Class F
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class F Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class F Shares or of any shares ranking on a parity with or junior to
the Class F 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 and materially
the preferences or voting or other rights of the holders of such
series.
SECTION 6. 8.60% CLASS F CUMULATIVE REDEEMABLE PREFERRED
SHARES. Of the 750,000 authorized Class F Shares, 690,000 shares are designated
as a series entitled "8.60% Class F Cumulative Redeemable Preferred Shares"
(hereinafter called "8.60% Class F Preferred Shares"). The 8.60% Class F
Preferred Shares shall have the express terms set forth in this Division as
being applicable to all Class F Shares as a class and, in addition, the
following express terms applicable to all 8.60% Class F Preferred Shares as a
series of Class F Shares:
(a) The annual dividend rate of the 8.60% Class F Preferred Shares
shall be 8.60% of the liquidation preference of $250.00 per share.
(b) Dividends on the 8.60% Class F Preferred Shares shall be payable,
if declared, quarterly on or about the fifteenth day of March, June,
September, and December each year, the first quarterly dividend being
payable, if declared, on June 15, 2002. The dividends payable for each
full quarterly dividend period on each 8.60% Class F Preferred Shares
shall be $0.5375.
Dividends for the initial dividend period on the 8.60% Class F
Preferred Shares, or for any period shorter or longer than a
full dividend period on the 8.60% Class F Preferred Shares,
shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The aggregate dividend payable quarterly
to each holder of 8.60% Class F Preferred Shares shall be
rounded to the nearest one one-hundredth of one cent with
$.00005 being rounded upward. Each dividend shall be payable
to the holders of record on such record date, no less than 10
nor more than 30 days preceding the payment date thereof, as
shall be fixed from time to time by the Corporation's Board of
Directors.
(c) Dividends on 8.60% Class F Preferred Shares shall be cumulative as
follows:
(1) With respect to shares included in the initial issue of
8.60% Class F Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment
of the first dividend on the initial issue of 8.60% Class F
Preferred Shares, dividends shall be cumulative from the date
of the initial issue of 8.60% Class F Preferred Shares; and
(2) With respect to shares issued any time after the aforesaid
record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares,
except that if such shares are issued during the period
commencing the day after the record date for the payment of a
dividend on 8.60% Class F Preferred Shares and ending on the
payment date of that dividend, dividends with respect to such
shares shall be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's status as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended, the 8.60% Class F Preferred Shares may not be redeemed prior
to March 27, 2007. At any time or from time to time on and after March
27, 2007 the Corporation, at its option upon not less than thirty (30)
nor more than sixty (60) days' written notice, may redeem all or any
part of the 8.60% Class F Preferred Shares at a redemption price of
$250.00 per share plus, in each case, an amount equal to all dividends
accrued and unpaid thereon to the redemption date, without interest.
The redemption price (other than the portion thereof consisting of
accrued and unpaid dividends) is payable solely out of the sale
proceeds of other capital shares of the Corporation, which may include
any equity securities (including common shares and preferred shares),
shares, interests, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities), or options to purchase any of
the foregoing.
(e) The amount payable per 8.60% Class F Preferred Share in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation shall be $250.00, plus an amount
equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 8.60% Class F Preferred Shares,
at any time during which the Corporation is in default in the payment
of dividends on such 8.60% Class F Preferred Shares for any dividend
period, shall, for the purposes of Section 5(b)(1) of this Division
A-VI, be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
VII. The Class G Cumulative Preferred Shares. The Class G Shares shall
have the following express terms:
Section 1. Series. The Class G Shares may be issued from time to time
in one or more series. All Class G 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 Class G Shares
shall rank on a parity with the Class A Shares, Class B Shares, Class C
Shares, Class D
58
Shares, Class E Shares, Class F Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in
respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and (2)
only dividends on Cumulative Shares shall be cumulative as set forth herein.
Subject to the provisions of Sections 2 through 5, both inclusive, and Item
XIII of this Division, which provisions shall apply to all Class G 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and 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(d) or 5(e) of this Item VII) on the issuance of shares of the same
series or of any other class or series.
59
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class G Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class G Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class G Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class G Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class G Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class G 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 the Class G Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
G 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 the Class G Shares
received by the Corporation subsequent to the date of first issuance of
Class G Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
60
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item VII.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class G Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class G Shares shall be the amount that the total dividends paid or
made available to the holders of the Class G Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class G
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item VII; and
(2) Shall, from time to time, make such redemptions of
each series of Class G 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 price fixed in accordance with
the provisions of Section 1 of this Item VII; and shall in each case
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 the Class G Shares to be
redeemed at their
61
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 Item
VII 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 Class G 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 the
Class G Shares so to be redeemed amounts equal to the redemption price
of the Class G 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. In the
event less than all of the outstanding Class G 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 Class G Shares which have been
called for redemption shall not within six 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 Class G 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 Class G Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class G Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class G Shares, unless
all dividends on all Class G Shares then outstanding for all previous
and current dividend periods shall have been
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declared and paid or funds therefor set apart and all accrued sinking
fund obligations applicable thereto shall have been complied with.
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 Class G 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 Shares or any other shares ranking
junior to the Class G Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item VII, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class G Shares of the
full preferential amounts as aforesaid, the holders of Class G 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, the merger of any other Corporation into
it, 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 Class G 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 dividends on any series of Class G Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class G
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class G
63
Shares shall not 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 such Class G Shares 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
such Class G Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class G 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
in the event above specified in this paragraph. All dividend payments
made on the Class G Shares, at any time during which the Corporation is
in default in the payment of dividends on such Class G Shares for any
dividend period, shall be deemed to be made in respect of the earliest
dividend period with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class G
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 the Class G Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class G
Shares. At any meeting at which such holders of Class G Shares shall be
entitled to elect directors, holders of 50% of such Class G Shares,
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 such
holders of Class G Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class G 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 or 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 such holders of Class G Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights of
the holders of the Class G Shares in respect of elections of directors
as provided in
64
this Subsection, the terms of office of all directors then in office
elected by such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a class
becomes vacant by reason of death, resignation, removal from office or
otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class G Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class G Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class G Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class G
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class G Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Amended and
Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of Class G
Shares which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class G Shares or of any shares ranking on a parity with or junior to
the Class G 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 and materially
preferences or voting or other rights of the holders of Class G Shares;
or
65
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class G Shares.
(e) In the event, and only to the extent, that (1) Class G
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class G Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class G Shares or of any shares ranking on a parity with or junior to
the Class G 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 and materially
the preferences or voting or other rights of the holders of such
series.
VIII. The Class H Cumulative Preferred Shares. The Class H Shares shall
have the following express terms:
Section 1. Series. The Class H Shares may be issued from time to time
in one or more series. All Class H 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 Class H Shares shall rank
on a parity with the Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class I Shares, Class
J Shares, Class K Shares and Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class I Shares, Class J Shares, Class
K Shares and Noncumulative Shares except (1) in respect of the matters that
may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Shares shall
be cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which provisions
shall apply to all Class H 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:
66
(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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and 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(d) or 5(e) of this Item VIII) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class H Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class H Shares, shall be entitled to
receive out of any funds legally available therefor, and 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
67
1 above 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 the Class H Shares for any dividend period
unless at the same time (i) a like proportionate dividend 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 Class H
Shares of all series then issued and outstanding and entitled to
receive such dividend and (ii) the dividends payable for the dividend
periods terminating on the same or any earlier date (but, with respect
to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed
therefor, shall have been paid upon or declared or set apart for all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class I Shares, Class J Shares,
Class K Shares and Noncumulative Shares then issued and outstanding and
entitled to receive such dividends.
(b) So long as any Class H Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class H 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 the Class H Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
H 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 the Class H Shares
received by the Corporation subsequent to the date of first issuance of
Class H Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item VIII.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class H Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or
68
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative
Shares into Common Shares, or (iii) the exercise by the Corporation of
its rights pursuant to Item XIV(d) of this Division A, Section 4(d) of
Division B or any similar Section hereafter contained in these Amended
and Restated Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class H Shares shall be the amount that the total dividends paid or
made available to the holders of the Class H Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class H
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item VIII; and
(2) Shall, from time to time, make such redemptions of
each series of Class H 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 price fixed in accordance with
the provisions of Section 1 of this Item VIII; and shall in each case
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 the Class H 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 Item VIII 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 Class H
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 the Class H Shares so to be
redeemed amounts equal to the redemption price of the Class H 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
69
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. In the event less than all of the outstanding Class H
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 Class H Shares which have been
called for redemption shall not within six 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 Class H 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 Class H Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class H Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class H Shares, unless
all dividends on all Class H Shares then outstanding for all previous
and current 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 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 Class H 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 Shares or any other shares ranking
junior to the Class H Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item VIII, plus an
amount equal to all dividends accrued and unpaid thereon to the date of
payment of the amount due pursuant to
70
such liquidation, dissolution or winding up of the affairs of the
Corporation. In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon all
outstanding Cumulative Shares and Noncumulative Shares of the full
preferential amount to which they are respectively entitled, then such
net assets shall be distributed ratably upon all outstanding Cumulative
Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class H Shares of the
full preferential amounts as aforesaid, the holders of Class H 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, the merger of any other Corporation into
it, 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 Class H 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 dividends on any series of Class H Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class H
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class I Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class H Shares shall not
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 such Class H Shares 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 such Class H Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class H 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 in the event above
specified in this paragraph. All dividend payments made on the Class H
Shares, at any time during which the Corporation is in default in the
payment of dividends on such
71
Class H Shares for any dividend period, shall be deemed to be made in
respect of the earliest dividend period with respect to which the
Corporation is in default.
(2) In the event of default entitling holders of Class H
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 the Class H Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class H
Shares. At any meeting at which such holders of Class H Shares shall be
entitled to elect directors, holders of 50% of such Class H Shares,
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 such
holders of Class H Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class H 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 or 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 such holders of Class H Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class H Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class H Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class I Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of
72
any default in the payment of dividends thereon, then the voting rights
of the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class H Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class H Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class H
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class H Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class H Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class H Shares or of any shares ranking on a
parity with or junior to the Class H 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 and materially preferences or voting or other rights
of the holders of Class H Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class H Shares.
(e) In the event, and only to the extent, that (1) Class H
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class H Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of
73
such series which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment
of these Amended and Restated Articles of Incorporation, as amended, so
as to authorize, create or change the authorized or outstanding number
of Class H Shares or of any shares ranking on a parity with or junior
to the Class H 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 and
materially the preferences or voting or other rights of the holders of
such series.
IX. The Class I Cumulative Preferred Shares. The Class I Shares shall
have the following express terms:
Section 1. Series. The Class I Shares may be issued from time to time
in one or more series. All Class I 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 Class I Shares shall rank
on a parity with the Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class
J Shares, Class K Shares and Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class J Shares, Class
K Shares and Noncumulative Shares except (1) in respect of the matters that
may be fixed by the Board of Directors as provided in clauses (a) through
(i), inclusive, of this Section 1 and (2) only dividends on Cumulative Shares
shall be cumulative as set forth herein. Subject to the provisions of
Sections 2 through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class I 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
74
(e) The redemption rights and 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(d) or 5(e) of this Item IX) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class I Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class I Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class I Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class I Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class J Shares, Class K Shares and
75
Noncumulative Shares then issued and outstanding and entitled to
receive such dividends.
(b) So long as any Class I Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class I 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 the Class I Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
I 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 the Class I Shares
received by the Corporation subsequent to the date of first issuance of
Class I Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item IX.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class I Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class I Shares shall
76
be the amount that the total dividends paid or made available to the
holders of the Class I Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class I
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item IX; and
(2) Shall, from time to time, make such redemptions of
each series of Class I 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 price fixed in accordance with
the provisions of Section 1 of this Item IX; and shall in each case 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 the Class I 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 Item IX 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 Class I 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 the Class I Shares so to be redeemed amounts
equal to the redemption price of the Class I 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. In the event less than all of the outstanding
Class I 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 Class I Shares which have been
called for redemption shall not within six years after such deposit
claim the amount deposited for the redemption thereof, any such bank or
trust company shall, upon
77
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 Class I 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 Class I Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class I Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class I Shares, unless
all dividends on all Class I Shares then outstanding for all previous
and current 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 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 Class I 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 Shares or any other shares ranking
junior to the Class I Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item IX, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class I Shares of the
full preferential amounts as aforesaid, the holders of Class I 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, the merger of any other Corporation into
it, or the sale, lease or
78
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 Class I 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 dividends on any series of Class I Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class I
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class J Shares, Class K Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class I Shares shall not
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 such Class I Shares 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 such Class I Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class I 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 in the event above
specified in this paragraph. All dividend payments made on the Class I
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class I Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class I
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 the Class I Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class I
Shares. At any meeting at which such holders of Class I Shares shall be
entitled to elect directors, holders of 50% of such Class I Shares,
present in person or by
79
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 such holders of Class I Shares
are entitled to elect as herein provided. Notwithstanding any provision
of these Amended and Restated Articles of Incorporation, as amended, 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 such holders of
Class I 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 or 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 such holders of Class
I Shares shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class I Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class I Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class J Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class I Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class I Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class I
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
80
(d) The affirmative vote of the holders of at least two-thirds
of the Class I Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class I Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class I Shares or of any shares ranking on a
parity with or junior to the Class I 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 and materially preferences or voting or other rights
of the holders of Class I Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class I Shares.
(e) In the event, and only to the extent, that (1) Class I
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class I Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class I Shares or of any shares ranking on a parity with or junior to
the Class I 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 and materially
the preferences or voting or other rights of the holders of such
series.
81
X. The Class J Cumulative Preferred Shares. The Class J Shares shall
have the following express terms:
Section 1. Series. The Class J Shares may be issued from time to time
in one or more series. All Class J 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 Class J Shares shall rank
on a parity with the Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class
I Shares, Class K Shares and Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class
K Shares and Noncumulative Shares except (1) in respect of the matters that
may be fixed by the Board of Directors as provided in clauses (a) through
(i), inclusive, of this Section 1 and (2) only dividends on Cumulative Shares
shall be cumulative as set forth herein. Subject to the provisions of
Sections 2 through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class J 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and 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;
82
(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(d) or 5(e) of this Item X) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class J Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class J Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class J Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class J Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class K Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class J Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class J 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 the Class J Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
J Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common Shares or
other
83
shares of the Corporation ranking junior to the Class J Shares received
by the Corporation subsequent to the date of first issuance of Class J
Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item X.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class J Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class J Shares shall be the amount that the total dividends paid or
made available to the holders of the Class J Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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 Class J
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item X; and
84
(2) Shall, from time to time, make such redemptions of
each series of Class J 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 price fixed in accordance with
the provisions of Section 1 of this Item X; and shall in each case 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 the Class J 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 Item X 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 Class J 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 the Class J Shares so to be redeemed amounts
equal to the redemption price of the Class J 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. In the event less than all of the outstanding
Class J 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 Class J Shares which have been
called for redemption shall not within six 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 Class J 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 Class J Shares without
serial designation.
85
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class J Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class J Shares, unless
all dividends on all Class J Shares then outstanding for all previous
and current 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 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 Class J 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 Shares or any other shares ranking
junior to the Class J Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item X, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class J Shares of the
full preferential amounts as aforesaid, the holders of Class J 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, the merger of any other Corporation into
it, 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 Class J 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 dividends on any series of Class J Shares at
the time outstanding,
86
whether or not earned or declared, for a number of dividend payment
periods, whether consecutive or not, which in the aggregate contain at
least 540 days, all holders of such Class J Shares, voting separately
as a class, together with all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class K Shares and Noncumulative Shares
upon which like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of
Directors of the Corporation; provided, however, that the holders of
such Class J Shares shall not 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 such Class J Shares 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 such Class J Shares then outstanding shall have been paid
or declared and a sum sufficient for the payment thereof set aside for
payment, whereupon the holders of such Class J 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 in the event above specified in this paragraph. All dividend
payments made on the Class J Shares, at any time during which the
Corporation is in default in the payment of dividends on such Class J
Shares for any dividend period, shall be deemed to be made in respect
of the earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling holders of Class J
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 the Class J Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class J
Shares. At any meeting at which such holders of Class J Shares shall be
entitled to elect directors, holders of 50% of such Class J Shares,
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 such
holders of Class J Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class J 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
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permitted in the total number of or classifications of directors of the
Corporation or 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 such holders of Class J Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class J Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class J Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class K Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class J Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class J Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class J
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class J Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class J Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
88
amended, so as to authorize, create or change the authorized or
outstanding number of Class J Shares or of any shares ranking on a
parity with or junior to the Class J 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 and materially preferences or voting or other rights
of the holders of Class J Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class J Shares.
(e) In the event, and only to the extent, that (1) Class J
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class J Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class J Shares or of any shares ranking on a parity with or junior to
the Class J 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 and materially
the preferences or voting or other rights of the holders of such
series.
Section 6. 9% Class J Cumulative Redeemable Preferred Shares. Of the
750,000 authorized Class J Shares, 450,000 shares are designated as a series
entitled "9% Class J Cumulative Redeemable Preferred Shares" (hereinafter
called "9% Class J Preferred Shares"). The 9% Class J Preferred Share shall
have the express terms set forth in this Division as being applicable to all
Class J Preferred Shares as a class and, in addition, the following express
terms applicable to all 9% Class J Preferred Shares as a series of Class J
Shares:
(a) The annual dividend rate of the 9% Class J Preferred
Shares shall be 9% of the liquidation preference of $250.00 per share.
(b) Dividends on the 9% Class J Preferred Shares shall be
payable, if declared, quarterly on or about the fifteenth day of
January, April, July and October. The dividends payable for each full
quarterly dividend period on each 9% Class J Preferred Share shall be
$5.625. Dividends for any period shorter or longer than a full dividend
period on the 9% Class J Preferred Shares, shall be
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computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of 9%
Class J Preferred Shares shall be rounded to the nearest one-hundredth
of one cent with $.00005 being rounded upward. Each dividend shall be
payable to the holders of record on such record date, no less than 10
nor more than 30 days preceding the payment date thereof, as shall be
fixed from time to time by the Corporation's Board of Directors.
(c) Dividends on 9% Class J Preferred Shares shall be
cumulative as follows:
(1) With respect to shares included in the initial issue of 9% Class J
Preferred Shares and shares issued any time thereafter up to and including
the record date for the payment of the first dividend on the initial issue
of 9% Class J Preferred Shares, dividends shall be cumulative from the date
of the initial issue of 9% Class J Preferred Shares; and
(2) With respect to shares issued any time after the aforesaid record
date, dividends shall be cumulative from the dividend payment date next
preceding the date of issue of such shares, except that if such shares are
issued during the period commencing the day after the record date for the
payment of a dividend on 9% Class J Preferred Shares and ending on the
payment date of that dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) The Corporation may, at any time or from time to time on,
at its option upon not less than thirty (30) nor more than sixty (60)
days' written notice, may redeem all or any part of the 9% Class J
Preferred Shares at a redemption price of $250.00 per share plus, in
each case, an amount equal to all dividends accrued and unpaid thereon
to the redemption date, without interest. The redemption price (other
than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the
Corporation, which may include any equity securities (including common
shares and preferred shares), shares, interests, participation or other
ownership interests (however designated) and any rights (other than
debt securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 9% Class J Preferred Share in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation shall be $250.00, plus an
amount equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) The affirmative vote of the holders of at least two-thirds
of the Class J Preferred Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose, shall be necessary to effect the
authorization, creation, increase in the authorized number of or
issuance of any shares, or any security convertible into or
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exchangeable for shares, in any such case ranking prior to such series
of Class J Preferred Shares in dividends, distributions or rights upon
liquidation, dissolution or winding up.
XI. The Class K Cumulative Preferred Shares. The Class K Shares shall
have the following express terms:
Section 1. Series. The Class K Shares may be issued from time to time
in one or more series. All Class K 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 Class K Shares
shall rank on a parity with the Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares and Noncumulative Shares and
shall be identical to all Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares and Noncumulative Shares except (1)
in respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and (2)
only dividends on Cumulative Shares shall be cumulative as set forth herein.
Subject to the provisions of Sections 2 through 5, both inclusive, and Item
XIII of this Division, which provisions shall apply to all Class K 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);
(c) The dividend rate or rates of the series, including the
means by which such rates 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
such dates and periods may be established;
(e) The redemption rights and 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;
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(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(d) or 5(e) of this Item XI) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), 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 Class K Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class K Shares, shall be entitled to
receive out of any funds legally available therefor, and 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 above 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 the Class K Shares for any
dividend period unless at the same time (i) a like proportionate
dividend 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 Class K Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class K Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class K Shares, shall be paid or declared or any
distribution be made, except as
92
aforesaid, in respect of the Common Shares or any other shares ranking
junior to the Class K Shares, nor shall any Common Shares or any other
shares ranking junior to the Class K 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 the Class K Shares received by the Corporation subsequent to
the date of first issuance of Class K Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item XI.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class K Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any other class
or series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class K Shares shall be the amount that the total dividends paid or
made available to the holders of the Class K Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
93
(1) May, from time to time at the option of the Board of
Directors, redeem all or any part of any redeemable series of Class K
Shares at the time outstanding at the applicable redemption price for
such series fixed in accordance with the provisions of Section 1 of
this Item XI; and
(2) Shall, from time to time, make such redemptions of
each series of Class K 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 price fixed in accordance with
the provisions of Section 1 of this Item XI; and shall in each case 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 the Class K 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 Item XI 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 Class K 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 the Class K Shares so to be redeemed amounts
equal to the redemption price of the Class K 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. In the event less than all of the outstanding
Class K 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 Class K Shares which have been
called for redemption shall not within six 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 Class K 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,
94
(3) converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation shall resume the status of
authorized but unissued Class K Shares without serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class K Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class K Shares, unless
all dividends on all Class K Shares then outstanding for all previous
and current 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 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 Class K 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 Shares or any other shares ranking
junior to the Class K Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item XI, 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. In the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Cumulative Shares and Noncumulative Shares
in proportion to the full preferential amount to which each such share
is entitled.
(2) After payment to the holders of Class K Shares of the
full preferential amounts as aforesaid, the holders of Class K 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, the merger of any other Corporation into
it, 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.
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Section 5. Voting.
(a) The holders of Class K 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 dividends on any series of Class K Shares at
the time outstanding, whether or not earned or declared, for a number
of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, all holders of such Class K
Shares, voting separately as a class, together with all Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares
and Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances described in
Subsection 5(c), shall be entitled to elect, as herein provided, a
total of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class K Shares shall not
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 such Class K Shares 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 such Class K Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class K 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 in the event above
specified in this paragraph. All dividend payments made on the Class K
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class K Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of Class K
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 the Class K Shares upon which such default
in the payment of dividends exists 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 90 days after the date
of receipt of the foregoing written request from the holders of Class K
Shares. At any meeting at which such holders of Class K Shares shall be
entitled to elect directors, holders of 50% of such Class K Shares,
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 such
holders of Class K Shares are entitled to elect as herein provided.
96
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, 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 such holders of Class K 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 or 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 such holders of Class K Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Class K Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class K Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares or Noncumulative Shares
are entitled to elect directors pursuant hereto by reason of any
default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a number of
votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class K Shares and of
all such other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or
event permitting the holders of Class K Shares to elect directors, or
prior to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class K
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class K Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
97
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Class K Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Class K Shares or of any shares ranking on a
parity with or junior to the Class K 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 and materially preferences or voting or other rights
of the holders of Class K Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such series of Class K Shares.
(e) In the event, and only to the extent, that (1) Class K
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class K Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class K Shares or of any shares ranking on a parity with or junior to
the Class K 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 and materially
the preferences or voting or other rights of the holders of such
series.
Section 6. 8 7/8% Class K Cumulative Redeemable Preferred Shares. Of
the 750,000 authorized Class K Shares, 350,000 shares are designated as a
series entitled "8 7/8% Class K Cumulative Redeemable Preferred Shares"
(hereinafter called "8 7/8% Class K Preferred Shares"). The 8 7/8% Class K
Preferred Shares shall have the express terms set forth in this Division as
being applicable to all Class K Preferred Shares as a class and, in
addition, the following express terms applicable to all 8 7/8% Class K
Preferred Shares as a series of Class K Shares:
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(a) The annual dividend rate of the 8 7/8% Class K Preferred
Shares shall be 8 7/8% of the liquidation preference of $250.00 per
share.
(b) Dividends on the 8 7/8% Class K Preferred Shares shall be
payable, if declared, quarterly on or about the fifteenth day of
January, April, July and October. The dividends payable for each full
quarterly dividend period on each 8 7/8% Class K Preferred Share shall
be $5.546875. Dividends for any period shorter or longer than a full
dividend period on the 8 7/8% Class K Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of
8 7/8% Class K Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each
dividend shall be payable to the holders of record on such record date,
no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board
of Directors.
(c) Dividends on 8 7/8% Class K Preferred Shares shall be
cumulative as follows:
(1) With respect to shares included in the initial issue
of 8 7/8% Class K Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment of the
first dividend on the initial issue of 8 7/8% Class K Preferred Shares,
dividends shall be cumulative from the date of the initial issue of
8 7/8% Class K Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares, except
that if such shares are issued during the period commencing the day
after the record date for the payment of a dividend on 8 7/8% Class K
Preferred Shares and ending on the payment date of that dividend,
dividends with respect to such shares shall be cumulative from that
dividend payment date.
(d) The Corporation may, at any time or from time to time on,
at its option upon not less than thirty (30) nor more than sixty (60)
days' written notice, redeem all or any part of the 8 7/8% Class K
Preferred Shares at a redemption price of $250.00 per share plus, in
each case, an amount equal to all dividends accrued and unpaid thereon
to the redemption date, without interest. The redemption price (other
than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the
Corporation, which may include any equity securities (including common
shares and preferred shares), shares, interests, participation or other
ownership interests (however designated) and any rights (other than
debt securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 8 7/8% Class K Preferred Share in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs
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of the Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) The affirmative vote of the holders of at least two-thirds
of the Class K Preferred Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose, shall be necessary to effect the
authorization, creation, increase in the authorized number of or
issuance of any shares, or any security convertible into or
exchangeable for shares, in any such case ranking prior to such series
of Class K Preferred Shares in dividends, distributions or rights upon
liquidation, dissolution or winding up.
XII. The Noncumulative Preferred Shares. The Noncumulative Preferred
Shares shall have the following express terms:
Section 1. Series. The Noncumulative Shares may be issued from time to
time in one or more series. All Noncumulative 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 on which and the periods for which dividends may be payable. All
Noncumulative Shares shall rank on a parity with the Cumulative Shares, and
shall be identical to all Cumulative Shares, except (1) in respect of the
matters that may be fixed by the Board of Directors as provided in clauses
(a) through (i), inclusive, of this Section 1 and (2) only dividends on the
Noncumulative Shares are noncumulative as set forth herein. Subject to the
provisions of Sections 2 through 5, inclusive, and Item XIII of this
Division, which provisions shall apply to all Noncumulative 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);
(c) The dividend rate or rates of the series, including the
means by which such rates may be established;
(d) The dates on which and the period or periods for which
dividends, if declared, shall be payable, including the means by which
such dates and periods may be established;
(e) The redemption rights and price or prices, if any, for
shares of the series;
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(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(d) or 5(e) of this Item XII) 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 Amended and Restated Articles of Incorporation, as amended,
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 Noncumulative Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Noncumulative Shares, shall be entitled to
receive out of any funds legally available therefor, if, 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 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue, in the case of shares of each
particular series, from and after the date or dates fixed with respect
to such series; provided, however, that if the Board of Directors fails
to declare a dividend payable on a dividend payment date on any
Noncumulative Shares, the holders of the Noncumulative Shares shall
have no right to receive a dividend in respect of the dividend period
ending on such dividend payment date, and the Corporation shall have no
obligation to pay the dividend accrued for such period, whether or not
dividends on such Noncumulative Shares are declared payable on any
future dividend payment date. No dividends shall be paid upon or
declared or set apart for any series of the Noncumulative Shares for
any dividend period unless at the same time (i) a like proportionate
dividend for the then current dividend period, ratably in proportion to
the respective annual dividend rates fixed therefor, shall have been
paid upon or declared or set apart for all Noncumulative Shares of all
series then issued and outstanding and entitled to receive such
dividend and (ii) the dividends 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 Class A Shares, Class B Shares, Class
C
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Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares and Class K Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Noncumulative Shares shall be outstanding
no dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Noncumulative 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 the Noncumulative
Shares, nor shall any Common Shares or any other shares ranking junior
to the Noncumulative 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 the
Noncumulative Shares received by the Corporation subsequent to the date
of first issuance of Noncumulative Shares of any series, unless:
(1) All accrued and unpaid dividends on Cumulative 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;
(2) All unpaid dividends on Noncumulative Shares for the
then current dividend period shall have been declared and paid or a sum
sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Shares or Noncumulative Shares of any series
from any sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item XII.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Noncumulative Shares shall be inapplicable
to (i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares into Common
Shares or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any
similar Section hereafter contained in these Amended and Restated
Articles of Incorporation with respect to any other class or series of
capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code) any portion (the "Capital Gains Amount") of the dividends paid or
made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Noncumulative
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Shares shall be the amount that the total dividends paid or made
available to the holders of the Noncumulative Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, 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
Noncumulative Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item XII; and
(2) Shall, from time to time, make such redemptions of
each series of Noncumulative 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 price fixed in accordance with
the provisions of Section 1 of this Item XII; and shall, in each case,
pay all unpaid dividends for the then current dividend period to the
redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Noncumulative 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 Item XII 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 Noncumulative
Shares to be redeemed, together with accrued and unpaid dividends
thereon for the then current dividend period 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
the Noncumulative Shares so to be redeemed amounts equal to the
redemption price of the Noncumulative Shares so to be redeemed together
with such accrued and unpaid dividends thereon for the then current
dividend period, 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. In the
event less than all of the outstanding Noncumulative 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.
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(2) If the holders of Noncumulative Shares which have been
called for redemption shall not within six 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 Noncumulative 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 Noncumulative Shares
without serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) of less than all of the
Noncumulative Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Noncumulative Shares,
unless all dividends on all Noncumulative Shares then outstanding for
the then current dividend period 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 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 Noncumulative 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 Shares or any other shares ranking
junior to the Noncumulative Shares, the amounts fixed with respect to
shares of such series in accordance with Section 1 of this Item XII,
plus an amount equal to all dividends accrued and unpaid thereon for
the then current dividend period to the date of payment of the amount
due pursuant to such liquidation, dissolution or winding up of the
affairs of the Corporation. In the event the net assets of the
Corporation legally available therefor are insufficient to permit the
payment upon all outstanding Cumulative Shares and Noncumulative Shares
of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all
outstanding Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
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(2) After payment to the holders of Noncumulative Shares
of the full preferential amounts as aforesaid, the holders of
Noncumulative 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, the merger of any other Corporation into
it, 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 Noncumulative 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 not have
fully paid, or shall not have declared and set aside a sum sufficient
for the payment of, dividends on any series of Noncumulative Shares at
the time outstanding, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least 540 days,
the holders of such Noncumulative Shares, voting separately as a class,
together with all Cumulative Shares upon which like voting rights have
been conferred and are exercisable, shall be entitled to elect, as
herein provided, two members of the Board of Directors of the
Corporation; provided, however, that the holders of such Noncumulative
Shares shall not 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 such Noncumulative Shares 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 the Corporation shall
have fully paid, or shall have set aside a sum sufficient for the
payment of, dividends on such Noncumulative Shares then outstanding for
a number of consecutive dividend payment periods which in the aggregate
contain at least 360 days, whereupon the holders of such Noncumulative
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 in the event above specified in
this paragraph.
(2) In the event of default entitling holders of
Noncumulative 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 the Noncumulative Shares upon
which such default in the payment of dividends exists 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 90 days after
the date of receipt of the foregoing written request from the holders
of
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Noncumulative Shares. At any meeting at which such holders of
Noncumulative Shares shall be entitled to elect directors, holders of
50% of such Noncumulative Shares, 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 such holders of Noncumulative Shares are
entitled to elect as herein provided. Notwithstanding any provision of
these Amended and Restated Articles of Incorporation, as amended, 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 such holders of
Noncumulative 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 such holders
of Noncumulative Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Noncumulative Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate
immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director
elected by such holders voting as a class may elect a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Noncumulative Shares
are entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Cumulative Shares are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Cumulative Shares and
Noncumulative Shares then entitled to vote shall be combined (with
class of shares having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such case, the
holders of Noncumulative Shares and of all such other shares then
entitled so to vote, voting as a class, shall elect such directors. If
the holders of any such other shares have elected such directors prior
to the happening of the default or event permitting the holders of
Noncumulative Shares to elect directors, or prior to a written request
for the holding of a special meeting being received by the Secretary of
the Corporation as required above, then a new election shall be held
with all such other shares and the Noncumulative Shares voting together
as a single class for such directors, resulting in the termination of
the term of such previously elected directors upon the election of such
new directors.
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(d) The affirmative vote of the holders of at least two-thirds
of the Noncumulative Shares at the time outstanding, voting separately
as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect either of
the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or of the
Code of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the holders of
Noncumulative Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as
amended, so as to authorize, create or change the authorized or
outstanding number of Noncumulative Shares or of any shares ranking on
a parity with or junior to the Noncumulative 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 and materially preferences or voting or other rights
of the holders of Noncumulative Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into
shares, in either case ranking prior to such Noncumulative Shares.
(e) In the event, and only to the extent, that (1)
Noncumulative Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital stock to vote
separately as a class, the affirmative vote of the holders of at least
two-thirds of each series of the Noncumulative Shares at the time
outstanding, voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose of voting on
such matters, shall be required for any amendment, alteration or
repeal, whether by merger, consolidation or otherwise, of any of the
provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects
adversely and materially the preferences or voting or other rights of
the holders of such series which are set forth in these Amended and
Restated Articles of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Noncumulative Shares or of any
shares remaining on a parity with or junior to the Noncumulative 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 and materially preferences or
voting or other rights of the holder of such series.
XIII. Definitions. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to"
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F
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Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares,
Class K Shares or Noncumulative Shares, 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 the rights of the holders of Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K
Shares or Noncumulative Shares, as the case may be;
(b) Whenever reference is made to shares "on a parity with"
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares or Noncumulative Shares, 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 rank equally (except as to the amounts fixed therefor) with
the rights of the holders of Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares, as the case may be; and
(c) Whenever reference is made to shares "ranking junior to"
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares or Noncumulative Shares, such reference
shall mean and include 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" Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K
Shares or Noncumulative Shares, as the case may be.
XIV. Restrictions on Transfer to Preserve Tax Benefit; Shares Subject
to Redemption.
(a) Definitions. For the purposes of this Item XIV of this
Division A of this Article FOURTH, the following terms shall have the
following meanings:
"Beneficial Ownership" shall mean ownership of Preferred
Shares by a Person who would be treated as an owner of such Preferred
Shares either directly or constructively through the application of
Section 544 of the Code, as modified by Section 856(h) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
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"Constructive Ownership" shall mean ownership of Preferred
Shares by a Person who would be treated as an owner of such Preferred
Shares either directly or constructively through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code.
The terms "Constructive Owner," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
"Excess Preferred Shares" shall mean any Preferred Shares (i)
acquired or proposed to be acquired by any Person pursuant to a
Transfer to the extent that, if effective, such Transfer would result
in the transferee either Beneficially Owning Preferred Shares or
Constructively Owning Preferred Shares in excess of the Ownership
Limit, or (ii) which are the subject of a Transfer that, if effective,
which would result in the Corporation being "closely held" within the
meaning of Section 856(h) of the Code.
"Market Price" shall mean, with respect to any series of any
class of Preferred Shares, the last reported sales price of such series
reported on the New York Stock Exchange on the trading day immediately
preceding the relevant date or, if shares of such series are not then
traded on the New York Stock Exchange, the last reported sales price of
shares of such series on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over
which the shares of such series may be traded, or if shares of such
series are not then traded over any exchange or quotation system, then
the market price of shares of such series on the relevant date as
determined in good faith by the Board of Directors of the Corporation.
"Ownership Limit" shall mean, with respect to each series of
each class of Preferred Shares, 9.8% of the outstanding shares of such
series.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c)
of the Code, an association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other entity or a
group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; provided, however, that a
"person" does not mean an underwriter which participates in a public
offering of Preferred Shares, for a period of 35 days following the
purchase by such underwriter of such Preferred Shares.
"Preferred Shares" shall mean, collectively, Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares,
Class K Shares and Noncumulative Shares.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
109
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Preferred Shares (including, without
limitation, (i) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of Preferred
Shares or (ii) the sale, transfer, assignment or other disposition of
any securities or rights convertible into or exchangeable for Preferred
Shares), whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section (i) of
this Item XIV of this Division A of this Article
FOURTH, no Person shall Beneficially Own or
Constructively Own shares of any series of any class
of Preferred Shares in excess of the Ownership Limit
applicable to such series.
(ii) Except as provided in Section (i) of
this Item XIV of this Division A of this Article
FOURTH, any Transfer that, if effective, would result
in any Person Beneficially Owning shares of any
series of any class of Preferred Shares in excess of
the Ownership Limit applicable to such series shall
be void ab initio as to the Transfer of such
Preferred Shares which would be otherwise
Beneficially Owned by such Person in excess of such
Ownership Limit, and the intended transferee shall
acquire no rights in such Preferred Shares.
(iii) Except as provided in Section (i) of
this Item XIV of this Division A of this Article
FOURTH, any Transfer that, if effective, would result
in any Person Constructively Owning shares of any
series of any class of Preferred Shares in excess of
the Ownership Limit applicable to such series shall
be void ab initio as to the Transfer of such
Preferred Shares which would be otherwise
Constructively Owned by such Person in excess of such
amount, and the intended transferee shall acquire no
rights in such Preferred Shares.
(iv) Notwithstanding any other provisions
contained in this Item XIV, any Transfer (whether or
not such Transfer is the result of a transaction
entered into through the facilities of the New York
Stock Exchange) or other event that, if effective,
would result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code, or
would otherwise result in the Corporation failing to
qualify as a REIT (including, but not limited to, a
Transfer or other event that would result in the
Corporation owning (directly or Constructively) an
interest in a tenant that is described in Section
856(d)(2)(B) of the Code if the income derived by the
Corporation from such tenant would cause the
110
Corporation to fail to satisfy any of the gross
income requirement of Section 856(c) of the Code)
shall be void ab initio as to the Transfer of the
Preferred Shares or other event which would cause the
Corporation to be "closely held" within the meaning
of Section 856(h) of the Code or would otherwise
result in the Corporation failing to qualify as a
REIT; and the intended transferee or owner or
Constructive or Beneficial Owner shall acquire or
retain no rights in such Preferred Shares.
(v) For purposes of construing the foregoing
provisions, any attempt to transfer Preferred Shares
in violation of the Ownership Limit applicable to the
series of the class of such Preferred Shares (as such
Ownership Limit may be modified by the Board of
Directors pursuant to Section (h) of Item XIV) shall
be construed as causing such Preferred Shares to be
transferred by operation of law to the Corporation as
trustee of a trust for the exclusive benefit of the
person or persons to whom such Preferred Shares can
ultimately be transferred without violating the
Ownership Limit and any Excess Preferred Shares while
held in such trust shall not have any voting rights,
shall not be considered for purposes of any
shareholder vote or for determining a quorum for such
a vote, and shall not be entitled to any dividends or
other distributions.
(c) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a Transfer has
taken place in violation of Section (b) of this Item XIV of this
Division A of this Article FOURTH or that a Person intends to acquire
or has attempted to acquire beneficial ownership (determined without
reference to any rules of attribution), Beneficial Ownership or
Constructive Ownership of any Preferred Shares of the Corporation in
violation of Section (b) of this Item XIV of this Division A of this
Article FOURTH, or that any such Transfer, intended or attempted
acquisition or acquisition would jeopardize the status of the
Corporation as a REIT under the Code, the Board of Directors or its
designees shall take such actions as it deems advisable to refuse to
give effect or to prevent such Transfer, including, but not limited to,
refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer and, in
addition, exercising its rights under Section (d) of this Item XIV of
this Division A of this Article FOURTH.
(d) Purchase Right in Excess Preferred Shares. Beginning on
the date of the occurrence of a Transfer which, if consummated, in the
good faith judgment of the Board of Directors of the Corporation, could
result in Excess Preferred Shares, the Excess Preferred Shares, subject
to such transfer shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to the lesser
of (i) the price per share in the transaction that created such Excess
Preferred Shares (or, in the case of a devise or gift, the Market Price
at the time of such devise or gift) and (ii) the Market Price on the
date the Corporation,
111
or its designee, accepts such offer. The Corporation shall have the
right to accept such offer for a period of 90 days after the later of
(i) the date of such Transfer and (ii) if the Corporation does not
receive a notice of such Transfer pursuant to Section (e) of this Item
XIV of this Division A of this Article FOURTH, the date the Board of
Directors determines in good faith that such Transfer has occurred.
Prompt payment of the purchase price shall be made in such reasonable
manner as may be determined by the Corporation. From and after the date
fixed for purchase by the Corporation, and so long as payment of the
purchase price for the Excess Preferred Shares to be so purchased shall
have been made or duly provided for, the holder of any Excess Preferred
Shares so called for purchase shall cease to be entitled to dividends,
distributions, voting rights and other benefits with respect to such
Excess Preferred Shares, excepting only the right to payment of the
purchase price fixed as aforesaid. Any dividend or distribution paid to
a proposed transferee of Excess Preferred Shares prior to the discovery
by the Corporation that the Excess Preferred Shares have been
transferred in violation of Section (b) of this Item XIV of this
Division A of this Article FOURTH shall be repaid to the Corporation
upon demand. If the foregoing provisions are determined to be void or
invalid by virtue of any legal decision, statute, rule or regulation,
then the intended transferee of such Excess Preferred Shares shall be
deemed, at the option of the Corporation, to have acted as agent on
behalf of the Corporation in acquiring such Excess Preferred Shares and
to hold such Excess Preferred Shares on behalf of the Corporation.
(e) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire Preferred Shares or other securities in violation
of subparagraph (b) of this Item XIV, or any Person who owns or will
own Excess Preferred Shares as a result of an event under subparagraph
(b) of this Item XIV, shall immediately give written notice to the
Corporation of such event and shall provide to the Corporation such
other information as the Corporation may request in order to determine
the effect, if any, of such Transfer or attempted Transfer or other
event on the Corporation's status as a REIT.
(f) Owners Required to Provide Information. From and after the
date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0%
(or such other percentage, between 0.5% and 5.0%, as
provided in the regulations promulgated pursuant to
the Code) of the outstanding Preferred Shares of the
Corporation shall, within 30 days after January 1 of
each year, give written notice to the Corporation
stating the name and address of such Beneficial
Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such
Beneficial Owner shall provide to the Corporation
such additional information as the Corporation may
request in order to determine the effect, if any, of
such Beneficial Ownership on the Corporation's status
as a REIT.
112
(ii) each Person who is a Beneficial Owner
or Constructive Owner of Preferred Shares and each
Person (including the shareholder of record) who is
holding Preferred Shares for a Beneficial Owner or
Constructive Owner shall provide to the Corporation
such information that the Corporation may request, in
good faith, in order to determine the Corporation's
status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Division A
of this Article FOURTH shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable
to protect the Corporation and the interests of its shareholders by
preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of this Item XIV of this Division A of this
Article FOURTH, including any definition contained in Section (a) of
this Item XIV, the Board of Directors shall have the power to determine
the application of the provisions of this Item XIV with respect to any
situation based on the facts known to it.
(1) Exceptions.
(i) Subject to Section (b)(iv) of this Item XIV of
this Division A, the Board of Directors may exempt a Person
from the Ownership Limit applicable to a series of a class
of Preferred Shares if such Person is not an individual
(other than pension plans described in Section 856(h)(3))
for purposes of Section 542(a)(2) of the Code if the Board
of Directors obtains such representations and undertakings
from such Person as are reasonably necessary to ascertain
that no individual's Beneficial Ownership of such Preferred
Shares will violate the Ownership Limit, and agrees that
any violation or attempted violation will result in such
Preferred Shares in excess of the Ownership Limit being
subject to repurchase by the Corporation as set forth in
Section (d) of this Item XIV of this Division A of this
Article FOURTH.
(ii) The Board of Directors may exempt a Person from
the limitation on such Person Constructively Owning
Preferred Shares in excess of the Ownership Limit
applicable to a series of a class of such Preferred Shares
if such Person does not own and represents that it will not
own, directly or constructively (by virtue of the
application of Section 318 of the Code, as modified by
Section 856(d)(5) of the Code), more than a 9.8% interest
(as set forth in Section 856(d)(2)(B)) in a tenant of any
real property owned or leased by the Corporation, if the
Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary
to ascertain this fact and agrees that any violation or
attempted violation will result in such Preferred Shares
113
in excess of the Ownership Limit being deemed to be Excess
Preferred Shares and subject to repurchase by the
Corporation as set forth in Section (d) of this Item XIV of
this Division A of this Article FOURTH.
XV. Legend. Each certificate for Preferred Shares shall bear the following
legend:
"The Preferred Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own or Constructively Own shares of
any series of any class of Preferred Shares in excess of 9.8% of the outstanding
Preferred Shares of such series. Any Person who attempts to Beneficially Own or
Constructively Own shares of any series of any class of Preferred Shares in
excess of the above limitations must immediately notify the Corporation. All
capitalized terms in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Preferred Shares
represented hereby may be subject to repurchase by the Corporation on the terms
and conditions set forth in the Corporation's Articles of Incorporation.
DIVISION B
Subject to the terms of the Cumulative Shares and the
Noncumulative Preferred Shares, the Common Shares shall have the following
express terms:
Section 1. Dividend Rights. The holders of Common Shares shall
be entitled to receive, when, as and if declared by the Board of
Directors of the Corporation, out of the assets of the Corporation
which are by law available therefor, dividends or distributions payable
in cash, in property or in securities of the Corporation.
Section 2. Rights Upon Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of, or
any distribution of the assets of, the Corporation, each holder of
Common Shares shall be entitled to receive, ratably with each other
holder of Common Shares, that portion of the assets of the Corporation
available for distribution to its shareholders as the number of Common
Shares held by such holder bears to the total number of Common Shares
then outstanding.
Section 3. Voting Rights. The holders of Common Shares shall
be entitled to vote on all matters (for which holders of Common Shares
shall be entitled to vote thereon) at all meetings of the shareholders
of the Corporation, and shall be entitled to one vote for each Common
Share entitled to vote at such meeting.
Section 4. Restrictions on Transfer to Preserve Tax Benefit;
Common Shares Subject to Redemption.
(a) Definitions. For the purposes of this Section 4 of this
Division B of this Article FOURTH, the following terms shall have the
following meanings:
114
"Beneficial Ownership" shall mean ownership of Common Shares
by a Person who would be treated as an owner of such Common Shares
either directly or constructively through the application of Section
544 of the Code, as modified by Section 856(h)(1)(B) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Constructive Ownership" shall mean ownership of Common Shares
by a Person who would be treated as an owner of such Common Shares
either directly or Constructively through the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code. The
terms "Constructive Owner," "Constructively Owns" and "Constructively
Owned" shall have the correlative meanings.
"Excess Shares" shall mean any Common Shares (i) acquired or
proposed to be acquired by any Person (other than an Existing Holder)
pursuant to a Transfer to the extent that, if effective, such Transfer
would result in the transferee either (A) Beneficially Owning Common
Shares in excess of the Ownership Limit or (B) Constructively Owning
Common Shares in excess of the Related Party Limit, (ii) acquired or
proposed to be acquired by an Existing Holder pursuant to a Transfer to
the extent that, if effective, such Transfer would result in such
Existing Holder Beneficially Owning Common Shares in excess of the
Existing Holder Limit for such Existing Holder, or (iii) which are the
subject of a Transfer that, if effective, which would result in (A) the
Common Shares being owned by fewer than 100 Persons (determined without
reference to any rules of attribution), or (B) the Corporation being
"closely held" within the meaning of Section 856(h) of the Code.
"Existing Holder" shall mean (i) Bert L. Wolstein, (ii) Scott
A. Wolstein, (iii) James A. Schoff, and (iv) any Person to whom an
Existing Holder Transfers Beneficial Ownership of Common Shares causing
such transferee to Beneficially Own Common Shares in excess of the
Ownership Limit.
"Existing Holder Limit" (i) for any Existing Holder who is an
Existing Holder by virtue of clause (i), (ii) or (iii) of the
definition thereof, shall mean, initially, the percentage of the
outstanding Common Shares Beneficially Owned by such Existing Holder
upon the consummation of the Initial Public Offering, and after any
adjustment pursuant to Section (4)(i) of this Division B of this
Article FOURTH, shall mean such percentage of the outstanding Common
Shares as so adjusted; and (ii) for any Existing Holder who becomes an
Existing Holder by virtue of clause (iv) of the definition thereof,
shall mean, initially, the percentage of the outstanding Common Shares
Beneficially Owned by such Existing Holder at the time that such
Existing Holder becomes an Existing Holder, and after any adjustment
pursuant to Section 4(i) of this Division B of this
115
Article FOURTH, shall mean such percentage of the outstanding Common
Shares as so adjusted. From and after the date of the Initial Public
Offering, the secretary of the Corporation shall maintain and, upon
request, make available to each Existing Holder, a schedule which sets
forth the then current Existing Holder Limits for each Existing Holder.
"Initial Public Offering" means the sale of Common Shares
pursuant to the Corporation's first effective registration statement
for such Common Shares filed under the Securities Act of 1933, as
amended.
"Market Price" shall mean the last reported sales price of
Common Shares reported on the New York Stock Exchange on the trading
day immediately preceding the relevant date or, if the Common Shares
are not then traded on the New York Stock Exchange, the last reported
sales price of the Common Shares on the trading day immediately
preceding the relevant date as reported on any exchange or quotation
system over which the Common Shares may be traded, or if the Common
Shares are not then traded over any exchange or quotation system, then
the market price of the Common Shares on the relevant date as
determined in good faith by the Board of Directors of the Corporation.
"Ownership Limit" shall mean 5.0% of the outstanding Common
Shares of the Corporation.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c)
of the Code, an association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other entity or a
group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; provided, however, that a
"Person" does not mean an underwriter which participates in a public
offering of the Common Shares, for a period of 35 days following the
purchase by such underwriter of the Common Shares.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
"Related Party Limit" shall mean 9.8% of the outstanding
Common Shares of the Corporation.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Common Shares (including, without
limitation, (i) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of Common Shares
or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Common
Shares), whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise.
116
(b) Restrictions on Transfers.
(i) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, no
Person (other than an Existing Holder) shall
Beneficially Own Common Shares in excess of the
Ownership Limit and no Existing Holder shall
Beneficially Own Common Shares in excess of the
Existing Holder Limit for such Existing Holder.
(ii) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in any
Person (other than an Existing Holder) Beneficially
Owning Common Shares in excess of the Ownership Limit
shall be void ab initio as to the Transfer of such
Common Shares which would be otherwise Beneficially
Owned by such Person in excess of the Ownership
Limit, and the intended transferee shall acquire no
rights in such Common Shares.
(iii) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Common Shares in
excess of the applicable Existing Holder Limit shall
be void ab initio as to the Transfer of such Common
Shares which would be otherwise Beneficially Owned by
such Existing Holder in excess of the applicable
Existing Holder Limit, and such Existing Holder shall
acquire no rights in such Common Shares.
(iv) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in any
Person Constructively Owning Common Shares in excess
of the Related Party Limit shall be void ab initio as
to the Transfer of such Common Shares which would be
otherwise Constructively Owned by such Person in
excess of such amount, and the intended transferee
shall acquire no rights in such Common Shares.
(v) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in the
Common Shares being beneficially owned by less than
100 Persons (determined without reference to any
rules of attribution) shall be void ab initio as to
the Transfer of such Common Shares which would be
otherwise beneficially owned by the transferee,
117
and the intended transferee shall acquire no rights
in such Common Shares.
(vi) From and after the date of the Initial
Public Offering, any Transfer that, if effective,
would result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code
shall be void ab initio as to the Transfer of the
Common Shares which would cause the Corporation to be
"closely held" within the meaning of Section 856(h)
of the Code, and the intended transferee shall
acquire no rights in such Common Shares.
(c) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a Transfer has
taken place in violation of Section 4(b) of this Division B of this
Article FOURTH or that a Person intends to acquire or has attempted to
acquire beneficial ownership (determined without reference to any rules
of attribution), Beneficial Ownership or Constructive Ownership of any
Common Shares of the Corporation in violation of Section 4(b) of this
Division B of this Article FOURTH, or that any such Transfer, intended
or attempted acquisition or acquisition would jeopardize the status of
the Corporation as a REIT under the Code, the Board of Directors or its
designees shall take such actions as it deems advisable to refuse to
give effect or to prevent such Transfer, including, but not limited to,
refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer and, in
addition, exercising its rights under Section 4(d) of this Division B
of this Article FOURTH.
(d) Purchase Right in Excess Shares. Beginning on the date of
the occurrence of a Transfer which, if consummated, in the good faith
judgment of the Board of Directors of the Corporation, could result in
Excess Shares, such Excess Shares shall be deemed to have been offered
for sale to the Corporation, or its designee, at a price per share
equal to the lesser of (i) the price per share in the transaction that
created such Excess Shares (or, in the case of a devise or gift, the
Market Price at the time of such devise or gift) and (ii) the Market
Price on the date the Corporation, or its designee, accepts such offer.
The Corporation shall have the right to accept such offer for a period
of ninety days after the later of (i) the date of such Transfer and
(ii) if the Corporation does not receive a notice of such Transfer
pursuant to Section 4(e) of this Division B of this Article FOURTH, the
date the Board of Directors determines in good faith that such Transfer
has occurred. Prompt payment of the purchase price shall be made in
such reasonable manner as may be determined by the Corporation. From
and after the date fixed for purchase by the Corporation, and so long
as payment of the purchase price for the Excess Shares to be so
purchased shall have been made or duly provided for, the holder of any
Excess Shares so called for purchase shall cease to be entitled to
dividends, distributions, voting rights and other benefits with respect
to such Excess Shares, excepting only the right to payment of the
purchase price fixed as aforesaid. Any dividend or distribution paid to
a proposed transferee of Excess Shares prior to the discovery by the
Corporation that the Excess Shares have been
118
transferred in violation of Section 4(b) of this Division B of this
Article FOURTH shall be repaid to the Corporation upon demand. If the
foregoing provisions are determined to be void or invalid by virtue of
any legal decision, statute, rule or regulation, then the intended
transferee of such Excess Shares shall be deemed, at the option of the
Corporation, to have acted as agent on behalf of the Corporation in
acquiring such Excess Shares and to hold such Excess Shares on behalf
of the Corporation.
(e) Notice of Restricted Transfer. Any Person who acquires or
intends to acquire shares in violation of Section 4(b) of this Division
B of this Article FOURTH or any Person who is a transferee of Excess
Shares shall immediately give written notice to the Corporation of such
event and shall provide to the Corporation such other information as
the Corporation may request in order to determine the effect, if any,
of such Transfer or intended Transfer on the Corporation's status as a
REIT.
(f) Owners Required to Provide Information. From and after the
date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0%
(or such other percentage, between 0.5% and 5.0%, as
provided in the regulations promulgated pursuant to
the Code) of the outstanding Common Shares of the
Corporation shall, within 30 days after January 1 of
each year, give written notice to the Corporation
stating the name and address of such Beneficial
Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such
Beneficial Owner shall provide to the Corporation
such additional information as the Corporation may
request in order to determine the effect, if any, of
such Beneficial Ownership on the Corporation's status
as a REIT.
(ii) each Person who is a Beneficial Owner
or Constructive Owner of Common Shares and each
Person (including the shareholder of record) who is
holding Common Shares for a Beneficial Owner or
Constructive Owner shall provide to the Corporation
such information that the Corporation may request, in
good faith, in order to determine the Corporation's
status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Division B
of this Article FOURTH shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable
to protect the Corporation and the interests of its shareholders by
preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of Section 4 of this Division B of this
Article FOURTH, including any definition contained in Section 4(a), the
Board of Directors shall have the power
119
to determine the application of the provisions of this Section 4 with
respect to any situation based on the facts known to it.
(i) Modification of Existing Holder Limits. Subject to the
provisions of Section 4(k) of this Division B, the Existing Holder
Limits may be modified as follows:
(i) Subject to the limitations provided in
Section 4(k), any Existing Holder may Transfer Common
Shares to a Person who is already an Existing Holder
up to the number of Common Shares Beneficially Owned
by such transferor Existing Holder in excess of the
Ownership Limit. Any such Transfer will decrease the
Existing Holder Limit for such transferor Existing
Holder and increase the Existing Holder Limit for
such transferee Existing Holder by the percentage of
the outstanding Common Shares so Transferred. The
transferor Existing Holder shall give the Board of
Directors of the Corporation prior written notice of
any such Transfer.
(ii) Any grant of a stock option pursuant to
a stock option plan approved by the shareholders of
the Corporation shall increase the Existing Holder
Limit for the affected Existing Holder to the maximum
extent possible under Section 4(k) to permit the
Beneficial Ownership of the Common Shares issuable
upon the exercise of such stock option.
(iii) The Board of Directors may reduce the
Existing Holder Limit for any Existing Holder, with
the written consent of such Existing Holder, after
any Transfer permitted in this Section 4 by such
Existing Holder to a Person other than an Existing
Holder or after the lapse (without exercise) of a
stock option described in Section 4(i)(ii).
(iv) Any Common Shares issued to an Existing
Holder pursuant to a dividend reinvestment plan
adopted by the Corporation shall increase the
Existing Holder Limit for the Existing Holder to the
maximum extent possible under Section 4(k) to permit
the Beneficial Ownership of such Common Shares.
(j) Modification of Ownership Limit. Subject to the
limitations provided in Section 4(k) of this Division B, the Board of
Directors may from time to time increase the Ownership Limit.
(k) Limitations on Modifications. Notwithstanding any other
provision of this Division B of this Article FOURTH:
(i) Neither the Ownership Limit nor any
Existing Holder Limit may be increased (nor may any
additional Existing
120
Holder Limit be created) if, after giving effect to
such increase (or creation), five Beneficial Owners
of Common Shares (including all of the then Existing
Holders) could Beneficially Own, in the aggregate,
more than 49.6% of the outstanding Common Shares.
(ii) Prior to the modification of any
Existing Holder Limit or Ownership Limit pursuant to
Section 4(i) or Section 4(j) of this Division B of
this Article FOURTH, the Board of Directors of the
Corporation may require such opinions of counsel,
affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or
ensure the Corporation's status as a REIT.
(iii) No Existing Holder Limit shall be
reduced to a percentage which is less than the
Ownership Limit.
(iv) The Ownership Limit may not be
increased to a percentage which is greater than 9.8%.
(v) The Related Party Limit may not be
increased to a percentage which is greater than 9.8%.
(l) Exceptions.
(i) The Board of Directors, with a ruling
from the Internal Revenue Service or an opinion of
counsel, may exempt a Person from the Ownership
Limits or the Existing Holder Limits, as the case may
be, if such Person is not an individual for purposes
of Section 542(a)(2) of the Code and the Board of
Directors obtains such representations and
undertakings from such Person as are reasonably
necessary to ascertain that no individual's
Beneficial Ownership of such Common Shares will
violate the Ownership Limit or the applicable
Existing Holder Limit, as the case may be, and agrees
that any violation or attempted violation will result
in such Common Shares in excess of 5.0% of the
outstanding Common Shares being deemed to be Excess
Shares and subject to repurchase by the Corporation
as set forth in Section 4(d) of this Division B of
this Article FOURTH.
(ii) The Board of Directors, with a ruling
from the Internal Revenue Service or an opinion of
counsel, may exempt a Person from the limitation on
such Person Constructively Owning Common Shares in
excess of the Related Party Limit if such Person does
not own and represents that it will not own, directly
or constructively (by virtue of the application of
Section 318 of the Code, as modified by Section
856(d)(5) of the Code), more than a 9.9% interest (as
set forth in Section 856(d)(2)(B) in a tenant of
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any real property owned or leased by the Corporation,
and the Corporation obtains such representations and
undertakings from such Person as are reasonably
necessary to ascertain this fact and agrees that any
violation or attempted violation will result in such
Common Shares in excess of 9.8% being deemed to be
Excess Shares and subject to repurchase by the
Corporation as set forth in Section 4(d) of this
Division B of this Article FOURTH.
Section 5. Legend. Each certificate for Common Shares shall
bear the following legend:
"The Common Shares represented by this certificate
are subject to restrictions on transfer for the purpose of the
Corporation's maintenance of its status as a Real Estate
Investment Trust under the Internal Revenue Code of 1986, as
amended. Subject to certain provisions of the Corporation's
Articles of Incorporation, no Person may Beneficially Own
Common Shares in excess of 5.0% of the outstanding Common
Shares of the Corporation (unless such Person is an Existing
Holder) and no Person (other than an Existing Holder who
Constructively Owns in excess of 9.8% of the Common Shares
immediately following the consummation of the Initial Public
Offering) may Constructively Own Common Shares in excess of
9.8% of the outstanding Common Shares of the Corporation. Any
Person who attempts to Beneficially Own or Constructively Own
Common Shares in excess of the above limitations must
immediately notify the Corporation. All capitalized items in
this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the
restrictions on transfer, will be sent without charge to each
shareholder who so requests. If the restrictions on transfer
are violated, certain of the Common Shares represented may be
subject to repurchase by the Corporation on the terms and
conditions set forth in the Corporation's Articles of
Incorporation."
Section 6. Securities Exchange Transactions. Notwithstanding
any provision contained herein to the contrary, nothing in these
Amended and Restated Articles of Incorporation shall preclude the
settlement of any transaction entered into through the facilities of
the New York Stock Exchange.
FIFTH: At all times following the consummation of the Initial
Public Offering (as defined in Article FOURTH), at least a majority of the
members of the Board of Directors shall, except during the period of a vacancy
or vacancies therein, be Independent Directors. An "Independent Director" shall
mean a person who is not (i) employed by the Corporation or (ii) an "affiliate"
(as defined in Rule 405 under the Securities Act of 1933, as amended) of (A) any
entity which is part of the Developers Diversified Group, including, without
limitation, Developers Diversified Limited Partnership, an Ohio limited
partnership, Developers Diversified, Ltd., an Ohio limited partnership, W & M
Properties, an Ohio general partnership, W & Z Properties, Ltd., an Ohio limited
partnership, and DE Properties Corporation, an Ohio corporation, or (B) any
partnership which is an affiliate (as defined above) of any entity listed in
clause (A) of this Article FIFTH.
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SIXTH: 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 any class, now or hereafter authorized, or to subscribe for or
purchase securities convertible into or exchangeable for shares of the
corporation or to which shall be attached or appertain any warrants or rights
entitling the holder thereof to subscribe for or purchase shares, 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.
SEVENTH: Notwithstanding any provision of Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code, or any successor statutes now or
hereafter in force, requiring for the authorization or taking of any action the
vote or consent 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, such action, unless otherwise expressly required
by law or these Articles of Incorporation, may be authorized or taken by the
vote or consent of the holders of shares entitling them to exercise a majority
of the voting power of the corporation or of such class or classes of shares
thereof.
EIGHTH: To the extent permitted by law, the corporation, by
action of its Board of Directors, 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.
NINTH: The provisions of Chapter 1701.831 of the Ohio Revised
Code shall not apply to the Corporation.
TENTH: The provisions of Chapter 1707.043 of the Ohio Revised
Code shall not apply to the Corporation.
ELEVENTH: If any provision (or portion thereof) of these
Articles of Incorporation shall be found to be invalid, prohibited, or
unenforceable for any reason, the remaining provisions (or portions thereof) of
these Articles of Incorporation shall be deemed to remain in full force and
effect, and shall be construed as if such invalid, prohibited, or unenforceable
provision had been stricken herefrom or otherwise rendered inapplicable, it
being the intent of the Corporation and its shareholders that each such
remaining provision (or portion thereof) of these Articles of Incorporation
remain, to the fullest extent permitted by law, applicable and enforceable as to
all shareholders, notwithstanding any such finding.
TWELFTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in these Articles of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights conferred upon
shareholders herein are granted subject to this reservation.
THIRTEENTH: These Amended and Restated Articles of
Incorporation shall take the place of and supersede the Corporation's existing
Articles of Incorporation.
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