Exhibit 3(a)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
APPLIED INDUSTRIAL TECHNOLOGIES, INC.
FIRST: The name of the Corporation shall be Applied Industrial
Technologies, Inc.
SECOND: The place in the State of Ohio where the principal office of the
Corporation will be located is 3600 Euclid Avenue, Cleveland, Ohio 44115, in
Cuyahoga County, or such other location as the Board of Directors shall from
time to time determine.
THIRD: The purpose for which the Corporation is formed 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 Revised Code of Ohio, as now in effect or
hereinafter amended.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Eighty Million (80,000,000) shares of Common Stock,
without par value, and Two Million Five Hundred Thousand (2,500,000) shares of
Preferred Stock, without par value.
No holder of shares of stock of any class of the Corporation shall, as such
holder, have any rights to subscribe for or purchase (a) any shares of stock of
any class, any warrants, options or other instruments that shall confer upon the
holder thereof the right to subscribe for or purchase or receive from the
Corporation any shares of stock of any class which the Corporation may issue or
sell, whether or not such shares shall be exchangeable for any shares of stock
of the Corporation of any class or classes and whether or not such shares shall
be unissued shares, now or hereafter authorized, or shares acquired by the
Corporation after the issue thereof, and whether or not such shares of stock,
warrants, options or other instruments are issued for cash or services or
property or by way of dividend or otherwise, or (b) any other security of the
Corporation which shall be convertible into, or exchangeable for, any shares of
stock of the Corporation of any class or classes, or to which shall be attached
or appurtenant to any warrant, option or other instrument that shall confer upon
the holder of such security the right to subscribe for or purchase or receive
from the Corporation any shares of its stock of any class or classes, whether or
not such shares shall be unissued shares, now or hereafter authorized, or shares
acquired by the Corporation after the issue thereof, and whether or not such
securities are issued for cash or services or property or by way of dividend or
otherwise, other than such right, if any, as the Board of Directors, in its sole
discretion, may from time to time determine. If the Board of Directors shall
offer to the holders of shares of stock of any class of the Corporation, or any
of them, any such shares of stock, options, warrants, instruments or other
securities of the Corporation, such offer shall not, in any way, constitute a
waiver or release of the right of the Board of Directors subsequently to dispose
of other securities of the Corporation without offering the same to said
holders.
The shares of such classes shall have the following express terms:
DIVISION A
EXPRESS TERMS OF THE PREFERRED STOCK
(1) The Preferred Stock may be issued from time to time in one or more
series. All shares of Preferred Stock shall be of equal rank and shall be
identical with all other shares except in respect of the matters that may be
fixed by the Board of Directors as hereinafter provided, and each share of each
series shall be identical with all other shares of such series, except, if
dividends are to be cumulative, as to the date from which dividends are
cumulative. Subject to the provisions of Sections 2 and 3 of this Division,
which provisions shall apply to all Preferred Stock, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more series and
with respect to each such series prior to the issuance thereof to fix:
(a) The number of shares constituting such series, including the
authority to increase or decrease such number, and the distinctive
designation of such series.
(b) The dividend rate of the shares of such series, whether the
dividends shall be cumulative and, if so, the date from which they shall be
cumulative, and the relative rights of priority, if any, of payment of
dividends on shares of such series.
(c) The right, if any, of the Corporation to redeem shares of such
series and the terms and conditions of such redemption including the
redemption price.
(d) The rights of the shares in case of a voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of such series.
(e) The obligation, if any, of the Corporation to retire shares of
such series pursuant to a retirement or sinking fund or fund of a similar
nature and the terms and conditions of such obligation.
(f) The terms and conditions, if any, upon which shares of such series
shall be convertible into or exchangeable for shares of stock of any other
class or classes of stock of the Corporation or other entity or of any
other series of Preferred Stock, including the price or prices or the rate
or rates of conversion or exchange and the terms of adjustment, if any.
(g) Any other rights, preferences or limitations of the shares of such
series as may be permitted by law.
The Board of Directors is authorized to adopt from time to time amendments
to the Articles of Incorporation fixing, with respect to each such series, the
matters described in clauses (a) through (g), inclusive, of this Section 1.
(2) The Preferred Stock shall be senior to the Common Stock in payment of
dividends and payment in respect of liquidation or dissolution.
(3) The holders of Preferred Stock shall be entitled to one vote for each
share of such stock upon all matters presented to the shareholders; and, except
as otherwise required by law, the holders of Preferred Stock and the holders of
Common Stock shall vote together as one class on all matters.
(4) The express terms of the Series A Participating Preferred Stock shall
be as follows:
Designation and Amount. The shares of such series shall be designated as
"Series A Participating Preferred Stock" and the number of shares constituting
such series shall initially be 300,000 without par value, such number of shares
to be subject to increase or decrease by action of the Board of Directors.
Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Participating Preferred Stock with respect to dividends,
the holders of shares of Series A Participating Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, quarterly dividends payable in
cash on the last day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $10.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind)
of all noncash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock, without par value, of the Corporation (the "Common Stock")
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Participating
Preferred Stock. In the event the Corporation shall at any time after
January 15, 1998 (the "Rights Declaration Date"), (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
concurrently with its declaration of a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10.00 per share of the Series A Participating
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series
A Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Participating Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series A Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date
shall be no more than thirty (30) days prior to the date fixed for the
payment thereof.
Voting Rights. The holders of shares of Series A Participating
Preferred Stock shall have voting rights as set forth in Division A(3) of
Article FOURTH of the Articles of Incorporation.
Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating Preferred Stock as provided herein
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not (i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Participating Preferred Stock, except dividends paid ratably on the Series
A Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled; (iii) purchase or
otherwise acquire for consideration any shares of Series A Participating
Preferred Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to all holders
of such shares upon such terms as the Board of Directors, after
consideration of the annual dividend rates and other rights and preferences
of the series, shall determine in good faith will result in fair and
equitable treatment to the holders of such series.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (a) of this
subsection, purchase or otherwise acquire such shares at such time and in
such manner.
Reacquired Shares. Any shares of Series A Participating Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired promptly after the acquisition thereof.
Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A
Participating Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series A
Liquidation Preference").
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Participating Preferred Stock
then such remaining assets shall be distributed ratably to the holders of
such parity shares in proportion to their respective liquidation
preferences.
No Redemption. The shares of Series A Participating Preferred Stock
shall not be redeemable.
Ranking. The Series A Participating Preferred Stock shall rank equal
to all other series of the Corporation's Preferred Stock as to the payment
of dividends and the distribution of assets.
Amendment. The Amended and Restated Articles of Incorporation of the
Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds (2/3) or more of
the outstanding shares of the Series A Participating Preferred Stock,
voting separately as a class.
Fractional Shares. Series A Participating Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series A Participating Preferred Stock.
DIVISION B
EXPRESS TERMS OF THE COMMON STOCK
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof and to the terms of Article EIGHTH. Each share of
Common Stock shall be equal to every other share of Common Stock and the holders
thereof shall be entitled to one vote for each share of such stock on all
questions presented to the shareholders.
FIFTH: Except as otherwise provided in these Articles of Incorporation or
in the Regulations, the holders of a majority of the outstanding shares are
authorized to take any action which, but for this provision, would require the
vote or other action of the holders of more than a majority of such shares.
SIXTH: Except as otherwise provided in these Articles of Incorporation, the
Corporation, by its Board of Directors, may purchase issued shares, to the
extent permitted by law.
SEVENTH: The affirmative vote of the holders of not less than eighty
percent (80%) of the voting power of the Corporation in the election of
directors shall be required for the approval or authorization of any Business
Combination; provided, however, that the eighty percent voting requirement shall
not be applicable if the Business Combination is a merger or consolidation and
the cash or fair market value of the property, securities or other consideration
to be received per share by holders of the Common Stock of the Corporation in
the Business Combination (a) is not less than the highest per share price (with
appropriate adjustments for recapitalizations and for stock splits, stock
dividends and like distributions), paid by the Related Person in acquiring any
of its holdings of the Corporation's Common Stock and (b) if the Related Person
has acquired Common Stock with varying forms of consideration, the form of
consideration to be received by the holders of the Common Stock in the Business
Combination is cash or the form used to acquire the largest percentage of the
voting power of the Corporation in the election of directors owned by the
Related Person.
For the purpose of this Article SEVENTH:
(1) The term "Business Combination" shall mean (i) any merger or
consolidation of the Corporation or a subsidiary with or into a Related Person,
(ii) any sale, lease, exchange, transfer or other disposition, including,
without limitation, a mortgage or any other security device, of all or any
"Substantial Part" (as hereinafter defined) of the assets, either of the
Corporation (including, without limitation, of any voting securities of a
subsidiary) or of a subsidiary, to a Related Person, (iii) any merger or
consolidation of a Related Person with or into the Corporation or a subsidiary
of the Corporation, (iv) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of a Related Person to
the Corporation or a subsidiary of the Corporation, (v) the issuance of any
securities of the Corporation or a subsidiary of the Corporation to a Related
Person, (vi) any reclassification of securities (including any reverse stock
split) or recapitalization what would have the effect of increasing the voting
power of a Related Person, (vii) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf of a
Related Person, and (viii) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of Business
Combination.
(2) The term "Related Person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with its
"Affiliates" and "Associates" (as defined on October 18, 1988 in Rule 12b-2
under the Securities Exchange Act of 1934), "Beneficially Owns" (as defined on
October 18, 1988 in Rule 13d-3 under the Securities Exchange Act of 1934) Common
Stock or Preferred Stock of the Corporation consisting in the aggregate of 20
percent or more of the outstanding voting power of the Corporation in the
election of directors, and any Affiliate or Associate of any such individual,
corporation, partnership or other person or entity.
(3) The term "Substantial Part" shall mean more than thirty percent (30%)
of the fair market value of the total assets of the corporation in question, as
of the end of its most recent fiscal year ending prior to the time the
determination is being made.
(4) Without limitation, any Common Stock of the Corporation, or Preferred
Stock of the Corporation that has voting power in the election of directors,
that any Related Person has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise shall be
deemed beneficially owned by the Related Person.
(5) For the purposes of this Article SEVENTH, the term "other consideration
to be received" shall include, without limitation, Common Stock of the
Corporation retained by its existing public stockholders in the event of a
Business Combination in which the Corporation is the surviving corporation.
Notwithstanding any other provisions of these Articles of Incorporation or
the Regulations of the Corporation or any provision of law which might otherwise
permit a lesser vote, but in addition to any affirmative vote of the holders of
any particular class or series of stock required by law or these Articles of
Incorporation or the Regulations of the Corporation, the affirmative vote of the
holders of at least eighty percent (80%) of the Corporation's voting
power in the election of directors, voting as a single class, shall be required
to alter, amend or repeal this Article SEVENTH or to adopt any provisions in
these Articles of Incorporation or the Regulations of the Corporation which are
inconsistent with the provisions of this Article SEVENTH.
EIGHTH: No person shall make a Control Share Acquisition without first
obtaining the prior authorization of the Corporation's shareholders at a special
meeting of shareholders called by the Board of Directors in accordance with this
Article EIGHTH.
(1) Procedure. Any Person who proposes to make a Control Share Acquisition
shall deliver a notice ("Notice") to the Corporation at its principal place of
business that sets forth all of the following information:
(a) The identity of the Person who is giving the Notice;
(b) A statement that the Notice is given pursuant to this Article
EIGHTH;
(c) The number and class of shares of the Corporation owned, directly
or indirectly, by the Person who gives the Notice;
(d) The range of voting power (as specified in Section (6)(b)(1) of
this Article EIGHTH) under which the proposed Control Share Acquisition
would, if consummated, fall;
(e) A description in reasonable detail of the terms of the proposed
Control Share Acquisition; and
(f) Representations, supported by reasonable information, that the
proposed Control Share Acquisition would be consummated if shareholder
approval is obtained and, if consummated, would not be contrary to law and
that the Person who is giving the Notice has the financial capacity to make
the proposed Control Share Acquisition.
(2) Call of Special Meeting of Shareholders. The Board of Directors of the
Corporation shall, within ten (10) days after receipt by the Corporation of a
Notice that complies with Section (1), call a special meeting of shareholders to
be held not later than fifty (50) days after receipt of the Notice by the
Corporation, unless the Person who delivered the Notice agrees to a later date,
to consider the proposed Control Share Acquisition; provided that the Board of
Directors shall have no obligation to call such a meeting if they make a
determination within ten (10) days after receipt of the Notice that (i) the
Notice was not given in good faith; (ii) the proposed Control Share Acquisition
would not be in the best interests of the Corporation and its shareholders or
(iii) the proposed Control Share Acquisition could not be consummated for
financial or legal reasons. Notwithstanding anything to the contrary contained
in clause (ii) of the immediately preceding sentence, the Board of Directors
shall call such special meeting of shareholders if the Control Share Acquisition
described in the Notice is for any and all shares of the Corporation, for
cash, at a price higher than the highest price at which shares of Common Stock
have been traded during the ninety (90) day period prior to the date on which
the Corporation receives the Notice.
The Board of Directors may adjourn such special meeting of shareholders if
prior to such meeting the Corporation has received a Notice from any other
Person and the Board of Directors has determined that the Control Share
Acquisition proposed by such other Person, or a merger, consolidation or sale of
assets of the Corporation, should be presented to shareholders at an adjourned
meeting or at a special meeting held at a later date.
For purposes of making a determination that a special meeting of
shareholders should not be called pursuant to this Section (2), no such
determination shall be deemed void or voidable with respect to the Corporation
merely because one or more of its directors or officers who participated in
deliberations regarding such determination may be deemed to be other than
disinterested, if in any such case the material facts of the relationship giving
rise to a basis for self-interest are known to the directors and the directors,
in good faith reasonably justified by the facts, make such determination by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors constitute less than a quorum. For purposes of this
paragraph, "disinterested directors" shall mean directors whose material
contacts with the Corporation are limited principally to activities as a
director or shareholder. Persons who have material and recurring business or
professional contacts with the Corporation shall not be deemed to be
"disinterested directors" for purposes of this provision. A director shall not
be deemed to be other than a "disinterested director" merely because he would no
longer be a director if the proposed Control Share Acquisition were approved and
consummated.
(3) Notice of Special Meeting. The Corporation shall, as promptly as
practicable, give notice of the special meeting of shareholders called pursuant
to Section (2) to all shareholders of record as of the record date set for such
meeting. Such notice shall include or be accompanied by a copy of the Notice and
by a statement of the Corporation, authorized by the Board of Directors, of its
position or recommendation, or that it is taking no position or making no
recommendation, with respect to the proposed Control Share Acquisition.
(4) Requirements for Approval. The Person who delivered the Notice may make
the proposed Control Share Acquisition if both of the following occur:
(a) The shareholders of the Corporation authorize such acquisition at
the special meeting of shareholders called pursuant to Section (2), at
which meeting a quorum is present, by the affirmative vote of a majority of
the Voting Stock represented at such meeting in person or by proxy and by a
majority of the portion of such Voting Stock represented at such meeting in
person or by proxy excluding the votes of Interested Shares. A quorum shall
be deemed to be present at such special meeting if at least a majority of
the issued and outstanding Voting Stock, and a majority of such Voting
Stock excluding Interested Shares, are represented at such meeting in
person or by proxy.
(b) Such acquisition is consummated, in accordance with the terms so
authorized, not later than three hundred sixty (360) days following
shareholder authorization of the Control Share Acquisition.
(5) Violations of Restriction. Any Voting Stock issued or transferred to
any Person in violation of this Article EIGHTH shall hereinafter be called
"Excess Shares." In the event that any Person acquires Excess Shares, then, in
addition to any other remedies which the Corporation may have at law or in
equity as a result of such acquisition, the Corporation shall have the right to
treat the issuance or transfer of any such Excess Shares as null and void. In
the event the Corporation is not permitted to treat an issuance or transfer of
Excess Shares as null and void, such Excess Shares will be treated as the
equivalent of treasury shares of the Corporation and, as such, holders of Excess
Shares will hold such Excess Shares as agent of the Corporation and shall have
no right to exercise or receive the benefits of shareholder rights appurtenant
to such Excess Shares. In such event, the Corporation may redeem any or all
Excess Shares, arrange a sale to one or more purchasers who could acquire such
Excess Shares without violating this Article EIGHTH, or seek other appropriate
remedies. In addition, any Person who receives dividends, interest or any other
distribution with respect to Excess Shares shall hold the same as agent for the
Corporation and, following a permitted transfer, for the transferee thereof.
Notwithstanding the foregoing, any person who holds Excess Shares may transfer
the same (together with any distributions thereon) to any Person who, following
such transfer, would not own shares in violation of this Article EIGHTH. Upon
such permitted transfer, the Corporation shall pay or distribute to the
transferee any distributions on the Excess Shares not previously paid or
distributed.
(6) Definitions. As used in this Article EIGHTH:
(a) "Person" includes, without limitation, an individual, a
corporation (whether nonprofit or for profit), a partnership, an
unincorporated society or association, and two or more persons having a
joint or common interest.
(b)(1) "Control Share Acquisition" means the acquisition, directly or
indirectly, by any Person, of shares of the Corporation that, when added to
all other shares of the corporation in respect of which such Person,
directly or indirectly, may exercise or direct the exercise of voting power
as provided in this paragraph, would entitle such Person, immediately after
such acquisition, directly or indirectly, to exercise or direct the
exercise of voting power of the Corporation in the election of directors
within any of the following ranges of such voting power:
(i) One-fifth or more but less than one-third of such voting power;
(ii) One-third or more but less than a majority of such voting power;
or
(iii) A majority of such voting power.
A bank, broker, nominee, trustee, or other Person who acquires shares in
the ordinary course of business for the benefit of others in good faith and not
for the purpose of circumventing this Article EIGHTH shall, however, be deemed
to have voting power only of shares in respect of which such Person would be
able to exercise or direct the exercise of votes at a special meeting of
shareholders called pursuant to Section (2) of this Article EIGHTH without
further instruction from others. For purposes of this Article EIGHTH, the
acquisition of securities immediately convertible into shares of the Corporation
with voting power in the election of directors shall be treated as an
acquisition of such shares.
(b)(2) The acquisition of any shares of the Corporation does not
constitute a Control Share Acquisition for the purposes of this Article
EIGHTH if the acquisition is consummated in any of the following
circumstances:
(i) By underwriters in good faith and not for the purpose of
circumventing this Article EIGHTH in connection with an offering
to the public of securities of the Corporation;
(ii)By bequest or inheritance, by operation of law upon the death of
any individual, or by any other transfer without valuable
consideration, including a gift, that is made in good faith and
not for the purpose of circumventing this Article EIGHTH;
(iii) Pursuant to the satisfaction of a pledge or other security
interest created in good faith and not for the purpose of
circumventing this Article EIGHTH;
(iv)Pursuant to a merger, consolidation, combination or majority share
acquisition adopted or authorized by shareholder vote in
compliance with the provisions of Article SEVENTH of these
Articles of Incorporation and Sections 1701.78, 1701.79 or
1701.83 of the Ohio Revised Code if the Corporation is a party to
the agreement of merger, consolidation or acquisition, as the
case may be;
(v) Under such circumstances that the acquisition does not result in
the Person acquiring shares of the Corporation being entitled,
immediately thereafter and for the first time, directly or
indirectly, to exercise or direct the exercise of voting power of
the Corporation in the election of directors within the range of
one-fifth or more but less than one-third of such voting power,
or within any of the ranges of voting power specified in Section
(6)(b)(1)(i), (ii) or (iii) which is higher than the range of
voting power applicable to such Person immediately prior to such
acquisition;
(vi) Prior to October 18, 1988; or
(vii) Pursuant to a contract existing prior to October 18, 1988.
The acquisition by any Person of shares of the Corporation in a manner
described under this Section (6)(b)(2) shall be deemed to be a Control Share
Acquisition authorized pursuant to this Article EIGHTH within the range of
voting power specified in Section (6)(b)(1)(i), (ii) or (iii) that such Person
is entitled to exercise after such acquisition, provided that, in the case of an
acquisition in a manner described under Section (6)(b)(1)(i), (ii) or (iii), the
transferor of shares to such Person had previously obtained any authorization of
shareholders required under this Article EIGHTH in connection with such
transferor's acquisition of shares of the Corporation.
(b)(3) The acquisition of shares of the Corporation in good faith and
not for the purpose of circumventing this Article EIGHTH from any Person
whose Control Share Acquisition had previously been authorized by
shareholders in compliance with this Article EIGHTH, or from any Person
whose previous acquisition of shares would have constituted a Control Share
Acquisition but for Section (6)(b)(2), does not constitute a Control Share
Acquisition for the purpose of this Article EIGHTH unless such acquisition
entitles any Person, directly or indirectly, alone or with others, to
exercise or direct the exercise of voting power of the Corporation in the
election of directors in excess of the range of such voting power
authorized pursuant to this Article EIGHTH, or deemed to be so authorized
under Section (6)(b)(2).
(c) "Interested Shares" means Voting Stock with respect to which any
of the following persons may exercise or direct the exercise of the voting
power:
(1) any Person whose Notice prompted the calling of a special
meeting of shareholders pursuant to Section (2);
(2) any officer of the Corporation elected or appointed by the
directors of the Corporation; and
(3) any employee of the Corporation who is also a director of the
corporation.
(d) "Voting Stock" means all securities of the Corporation entitled to
vote generally in the election of directors, and, for purposes of Sections
(5) and (10) of this Article EIGHTH, shall mean securities of the
Corporation immediately convertible into securities entitled to vote
generally in the election of the directors.
(7) Proxies. No proxy appointed for or in connection with the shareholder
authorization of a Control Share Acquisition pursuant to this Article EIGHTH is
valid if it provides that it is irrevocable. No such proxy is valid unless it is
sought, appointed, and received both:
(a) In accordance with all applicable requirements of law; and
(b) Separate and apart from the sale or purchase, contract or tender
for sale or purchase, or request or invitation for tender for sale or
purchase, of shares of the Corporation.
(8) Revocability of Proxies. Proxies appointed for or in connection with
the shareholder authorization of a Control Share Acquisition pursuant to this
Article EIGHTH shall be revocable at all times prior to the obtaining of such
shareholder authorization, whether or not coupled with an interest.
(9) Amendments. Notwithstanding any other provisions of these Articles of
Incorporation or the Regulations of the Corporation or any provision of law that
might otherwise permit a lesser vote, but in addition to any affirmative vote of
the holders of any particular class or series of stock required by law, the
Articles of Incorporation or the Regulations of the Corporation, the affirmative
vote of the holders of at least eighty percent (80%) of the Voting Stock, voting
as a single class, shall be required to alter, amend or repeal this Article
EIGHTH or adopt any provisions in these Articles of Incorporation or the
Regulations of the Corporation which are inconsistent with the provisions of
this Article EIGHTH.
(10) Legend on Share Certificates. Each certificate representing Voting
Stock of the Corporation shall contain the following legend:
Transfer of the securities represented by this Certificate is subject
to the provisions of Article EIGHTH of the Corporation's Articles of
Incorporation as the same may be in effect from time to time. Upon written
request delivered to the Secretary of the Corporation at its principal
place of business, the Corporation will mail to the holder of this
Certificate a copy of such provisions without charge within five (5) days
after receipt of written request therefor. By accepting this Certificate
the holder hereof acknowledges that it is accepting same subject to the
provisions of said Article EIGHTH as the same may be in effect from time to
time and covenants with the Corporation and each holder thereof from time
to time to comply with the provisions of said Article EIGHTH as the same
may be in effect from time to time.
NINTH: The provisions of Section 1701.831 of the Ohio Revised Code, as
amended from time to time, or any successor provision or provisions to said
Section, shall not apply with respect to any particular Control Share
Acquisition, as such is defined in said Section, regarding this Corporation so
long as Article NINTH of these Articles of Incorporation, as such Articles of
Incorporation may be amended from time to time, remains an Article of these
Articles of Incorporation and remains substantially in full force and effect,
disregarding any renumbering of such Article NINTH resulting from any amendment
of these Articles of Incorporation.
TENTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation which may be
contained in these articles of incorporation of a corporation organized under
the laws of the State of Ohio, in the manner now or hereafter prescribed by
statute or these Articles of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.