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EXHIBIT 4(a)
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Amended Articles of
Incorporation
of
THE SHERWIN-WILLIAMS COMPANY
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As amended through
April 28, 1993
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AMENDED ARTICLES
OF
INCORPORATION
OF
THE SHERWIN-WILLIAMS COMPANY
FIRST: The name of this Company is THE SHERWIN-WILLIAMS COMPANY.
SECOND: The place where this Company shall be located and its principal
business shall be transacted is the City of Cleveland in the County of Cuyahoga
and State of Ohio.
THIRD: The Company is formed for the purpose of developing, producing,
manufacturing, buying, selling and generally dealing in products, goods, wares,
merchandise and services of any and all kinds and doing all things necessary or
incidental thereto.
FOURTH: The number of shares which the Company is authorized to have
outstanding is 330,000,000 consisting of 30,000,000 shares of Serial Preferred
Stock without par value (hereinafter called "Serial Preferred Stock") and
300,000,000 shares of Common Stock, par value $1.00 each (hereinafter called
"Common Stock").
The shares of such classes shall have the following express terms:
DIVISION A
EXPRESS TERMS OF THE SERIAL PREFERRED STOCK
Section 1. The Serial Preferred Stock may be issued from time to time in
one or more series. All shares of Serial Preferred Stock shall be of equal rank
and shall be identical, except in respect of the matters that may be fixed by
the Board of Directors as hereinafter provided, and each share of each series
shall be identical with all other shares of such series, except as to the date
from which dividends are cumulative. Subject to the provisions of Sections 2 to
8, both inclusive, of this Division, which provisions shall apply to all Serial
Preferred Stock, the Board of Directors hereby is authorized to cause such
shares to be issued in one or more series and with respect to each such series
prior to the issuance thereof to fix:
(a) The designation of the series, which may be by distinguishing
number, letter or title.
(b) The number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) The annual dividend rate of the series.
(d) The dates at which dividends, if declared, shall be payable, and
the dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any, for shares of
the series.
(f) The terms and amount of any sinking fund provided 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 Company.
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(h) Whether the shares of the series shall be convertible into Common
Stock, and, if so, the conversion price or prices, any adjustments thereof,
and all other terms and conditions upon which such conversion may be made.
(i) Restrictions (in addition to those set forth in Sections 6(b) and
6(c) of this Division) on the issuance of shares of the same series or of
any other class or series.
The Board of Directors is authorized to adopt from time to time amendments
to the Articles of Incorporation fixing, with respect to each such series, the
matters described in clauses (a) to (i), both inclusive, of this Section 1.
Section 2. The holders of Serial Preferred Stock of each series, in
preference to the holders of Common Stock and of any other class of shares
ranking junior to the Serial Preferred Stock, shall be entitled to receive out
of any funds legally available and when and as declared by the Board of
Directors dividends in cash at the rate for such series fixed in accordance with
the provisions of Section 1 of this Division and no more, payable quarterly on
the dates fixed for such series. Such dividends shall be cumulative, in the case
of shares of each particular series, from and after the date or dates fixed with
respect to such series. No dividends may be paid upon or declared or set apart
for any of the Serial Preferred Stock for any quarterly dividend period unless
at the same time a like proportionate dividend for the same quarterly dividend
period, ratably in proportion to the respective annual dividend rates fixed
therefor, shall be paid upon or declared or set apart for all Serial Preferred
Stock of all series then issued and outstanding and entitled to receive such
dividend.
Section 3. In no event so long as any Serial Preferred Stock shall be
outstanding shall any dividends, except a dividend payable in Common Stock or
other shares ranking junior to the Serial Preferred Stock, be paid or declared
or any distribution be made except as aforesaid on the Common Stock or any other
shares ranking junior to the Serial Preferred Stock, nor shall any Common Stock
or any other shares ranking junior to the Serial Preferred Stock be purchased,
retired or otherwise acquired by the Company (except out of the proceeds of the
sale of Common Stock or other shares ranking junior to the Serial Preferred
Stock received by the Company subsequent to August 31, 1966):
(a) Unless all accrued and unpaid dividends on Serial Preferred Stock,
including the full dividends for the current quarterly dividend period,
shall have been declared and paid or a sum sufficient for payment thereof
set apart; and
(b) Unless there shall be no arrearages with respect to the redemption
of Serial Preferred Stock of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of
this Division.
Section 4. (a) Subject to the express terms of each series and to the
provisions of Section 6(b) (iii) of this Division A, the Company may from time
to time redeem all or any part of the Serial Preferred Stock of any series at
the time outstanding (i) at the option of the Board of Directors at the
applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Division, or (ii) in fulfillment of the
requirements of any sinking fund provided for shares of such series at the
applicable sinking fund redemption price, fixed in accordance with the
provisions of Section 1 of this Division, together in each case with accrued and
unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the Serial Preferred Stock to be redeemed at their
respective addresses then appearing on the books of the Company, not less than
thirty (30) days nor more than sixty (60) days prior to the date fixed for such
redemption. At any time before or after notice has been given as above provided,
the Company may deposit the aggregate redemption price of the shares of Serial
Preferred Stock to be redeemed with any bank or trust company in Cleveland,
Ohio, or New York, New York, having capital and surplus of more than Five
Million Dollars
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($5,000,000), named in such notice, and direct that such amount be paid to the
respective holders of the shares of Serial Preferred Stock so to be redeemed, in
amounts equal to the redemption price of all shares of Serial Preferred Stock so
to be redeemed, on surrender of the stock certificate or certificates held by
such holders. Upon the making of such deposit such holders shall cease to be
shareholders with respect to such shares, and after such notice shall have been
given and such deposit shall have been made such holders shall have no interest
in or claim against the Company with respect to such shares except only to
receive such money from such bank or trust company without interest or the right
to exercise, before the redemption date, any unexpired privileges of conversion.
In case less than all of the outstanding shares of Serial Preferred Stock are to
be redeemed, the Company shall select by lot the shares so to be redeemed in
such manner as shall be prescribed by its Board of Directors.
If the holders of shares of Serial Preferred Stock which shall 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 Company such unclaimed amounts and thereupon
such bank or trust company and the Company shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any shares of Serial Preferred Stock which are redeemed by the Company
pursuant to the provisions of this Section 4 and any shares of Serial Preferred
Stock which are purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series and any shares of Serial
Preferred Stock which are converted in accordance with the express terms thereof
shall be cancelled and not reissued. Any shares of Serial Preferred Stock
otherwise acquired by the Company shall resume the status of authorized and
unissued shares of Serial Preferred Stock without serial designation.
Section 5. (a) The holders of Serial Preferred Stock of any series shall,
in case of voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, be entitled to receive in full out of the assets of
the Company, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the Serial Preferred Stock the amounts fixed with respect to the
shares of such series in accordance with Section 1 of this Division, plus in any
event 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 Company. In case the net assets of the Company legally
available therefor are insufficient to permit the payment upon all outstanding
shares of Serial Preferred Stock of the full preferential amount to which they
are respectively entitled, then such net assets shall be distributed ratably
upon outstanding shares of Serial Preferred Stock in proportion to the full
preferential amount to which each such share is entitled.
After payment to holders of Serial Preferred Stock of the full preferential
amounts as aforesaid, holders of Serial Preferred Stock as such shall have no
right or claim to any of the remaining assets of the Company.
(b) The merger or consolidation of the Company into or with any other
corporation, or the merger of any other corporation into it, or the sale, lease
or conveyance of all or substantially all the property or business of the
Company, shall not be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section 5.
Section 6. (a) The holders of Serial Preferred Stock shall be entitled to
one vote for each share of such stock upon all matters presented to the
shareholders; and, except as otherwise provided herein or required by law, the
holders of Serial Preferred Stock and the holders of Common Stock shall vote
together as one class on all matters. No adjustment of the voting rights of the
holders of Serial Preferred Stock shall be made in the event of an increase or
decrease in the number of shares of Common Stock authorized or issued or in the
event of a stock split or combination of the Common Stock or in the event of a
stock dividend on any class of stock
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payable solely in Common Stock, and none of the foregoing actions shall be
deemed to affect adversely the voting powers, rights or preferences of Serial
Preferred Stock within the meaning and for the purpose of this Division A.
If, and so often as, the Company shall be in default in the payment of
dividends in an amount equivalent to six (6) quarterly dividends (whether or not
consecutive) on any series of Serial Preferred Stock at the time outstanding,
whether or not earned or declared, the holders of Serial Preferred Stock of all
series, voting separately as a class and in addition to all other rights to vote
for Directors, shall be entitled to elect, as herein provided, two (2) members
of the Board of Directors of the Company; provided, however, that the holders of
shares of Serial Preferred Stock shall not have or exercise such special class
voting rights except at meetings of the shareholders for the election of
Directors at which the holders of not less than thirty-five per cent (35%) of
the outstanding shares of Serial Preferred Stock of all series then outstanding
are present in person or by proxy; and provided further that the special class
voting rights provided for herein when the same shall have become vested shall
remain so vested until all accrued and unpaid dividends on the Serial Preferred
Stock of all series then outstanding shall have been paid, whereupon the holders
of Serial Preferred Stock shall be divested of their special class voting rights
in respect of subsequent elections of Directors, subject to the revesting of
such special class voting rights in the event hereinabove specified in this
paragraph.
In the event of default entitling the holders of Serial Preferred Stock to
elect two (2) Directors as above specified, a special meeting of the
shareholders for the purpose of electing such Directors shall be called by the
Secretary of the Company upon written request of, or may be called by, the
holders of record of at least ten per cent (10%) of the shares of Serial
Preferred Stock of all series at the time outstanding, and notice thereof shall
be given in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Company shall not be required to call
such special meeting if the annual meeting of shareholders shall be held within
ninety (90) days after the date of receipt of the foregoing written request from
the holders of Serial Preferred Stock. At any meeting at which the holders of
Serial Preferred Stock shall be entitled to elect Directors, the holders of
thirty-five per cent (35%) of the then outstanding shares of Serial Preferred
Stock of all series, present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority of such shares so
present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which the holders of
Serial Preferred Stock are entitled to elect as hereinabove provided.
(b) The vote or consent of the holders of at least two-thirds of the shares
of Serial Preferred Stock at the time outstanding, given in person or by proxy
either in writing or at a meeting called for the purpose at which the holders of
Serial Preferred Stock shall vote separately as a class, shall be necessary to
effect any one or more of the following (but so far as the holders of Serial
Preferred Stock are concerned, such action may be effected with such vote or
consent):
(i) Any amendment, alteration or repeal of any of the provisions of
the Articles of Incorporation or of the Regulations of the Company which
affects adversely the voting powers, rights or preferences of the holders
of Serial Preferred Stock; provided, however, that, for the purpose of this
clause (i) only, neither the amendment of the Articles of Incorporation so
as to authorize or create, or to increase the authorized or outstanding
amount of, Serial Preferred Stock or of any shares of any class ranking on
a parity with or junior to the Serial Preferred Stock, nor the amendment of
the provisions of the Regulations so as to increase the number of Directors
of the Company shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of Serial Preferred Stock; and
provided further, that if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all series of
Serial Preferred Stock at the time
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outstanding, only the vote or consent of the holders of at least two-thirds
of the number of the shares at the time outstanding of the series so
affected shall be required;
(ii) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class, or any security convertible
into shares of any class, ranking prior to the Serial Preferred Stock; or
(iii) The purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Serial Preferred Stock then outstanding
except in accordance with a stock purchase offer made to all holders of
record of Serial Preferred Stock, unless all dividends upon all Serial
Preferred Stock then outstanding for all previous quarterly dividend
periods shall have been declared and paid or funds therefor set apart and
all accrued sinking fund obligations applicable thereto shall have been
complied with.
This Section 6(b) shall not apply to, and the class or series vote
specified therein shall not be required for the approval of, any action which is
part of or effected in connection with the consolidation of the Company with or
its merger into any other corporation, so long as the class vote specified by
Section 6(c) of this Division is obtained in any case in which such class vote
is required under clause (ii) of said Section 6(c).
(c) The vote or consent of the holders of at least a majority of the shares
of Serial Preferred Stock at the time outstanding, given in person or by proxy
either in writing or at a meeting called for the purpose at which the holders of
Serial Preferred Stock shall vote separately as a class, shall be necessary to
effect any one or more of the following (but so far as the holders of Serial
Preferred Stock are concerned, such action may be effected with such vote or
consent):
(i) The sale, lease or conveyance by the Company of all or
substantially all of its property or business; or
(ii) The consolidation of the Company with or its merger into any
other corporation unless the corporation resulting from such consolidation
or merger will have after such consolidation or merger no class of shares
either authorized or outstanding ranking prior to or on a parity with the
Serial Preferred Stock except the same number of shares ranking prior to or
on a parity with the Serial Preferred Stock and having the same rights and
preferences as the shares of the Company authorized and outstanding
immediately preceding such consolidation or merger, and each holder of
Serial Preferred Stock immediately preceding such consolidation or merger
shall receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(iii) The authorization of any shares ranking on a parity with the
Serial Preferred Stock or an increase in the authorized number of shares of
Serial Preferred Stock.
Section 7. If the shares of any series of Serial Preferred Stock shall be
convertible into Common Stock, then upon conversion of shares of such series the
stated capital of the Common Stock issued upon such conversion shall be the
aggregate par value of the shares so issued having par value, or, in the case of
shares without par value, shall be an amount equal to the stated capital
represented by each share of Common Stock outstanding at the time of such
conversion multiplied by the number of shares of Common Stock issued upon such
conversion. The stated capital of the Company shall be correspondingly increased
or reduced to reflect the difference between the stated capital of the shares of
Serial Preferred Stock so converted and the stated capital of the Common Stock
issued upon such conversion.
Section 8. The holders of Serial Preferred Stock shall have no preemptive
right to purchase or have offered to them for purchase any shares or other
securities of the Company, whether now or hereafter authorized.
Section 9. For the purpose of this Division A:
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Whenever reference is made to shares "ranking prior to the Serial Preferred
Stock" or "on a parity with the Serial Preferred Stock", such reference shall
mean and include all shares of the Company 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 Company are given preference over, or rank on an equality
with (as the case may be) the rights of the holders of Serial Preferred Stock;
and whenever reference is made to shares "ranking junior to the Serial Preferred
Stock", such reference shall mean and include all shares of the Company in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company are junior
and subordinate to the rights of the holders of Serial Preferred Stock.
DIVISION A-1
CUMULATIVE REDEEMABLE SERIAL PREFERRED STOCK
Section 1. There is established hereby a series of Serial Preferred Stock
that shall be designated "Cumulative Redeemable Serial Preferred Stock"
(hereinafter sometimes called this "Series" or the "Cumulative Redeemable
Preferred Shares") and that shall have the terms set forth in this Division A-1.
Section 2. The number of shares of this Series shall be 1,000,000.
Section 3. (a) The holders of record of Cumulative Redeemable Preferred
Shares shall be entitled to receive, when and as declared by the Board of
Directors in accordance with the terms hereof, out of funds legally available
for the purpose, cumulative quarterly dividends payable in cash on the first day
of January, April, July and October 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 Cumulative
Redeemable Preferred Share or fraction of a Cumulative Redeemable Preferred
Share in an amount per share (rounded to the nearest cent) equal to the lesser
of (i) $750 per share or (ii) 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
non-cash dividends or other distributions (other than a dividend payable in
shares of Common Stock, or a subdivision of the outstanding Common Stock (by
reclassification or otherwise)), declared on 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
Cumulative Redeemable Preferred Share or fraction of a Cumulative Redeemable
Preferred Share. In the event the Company shall at any time declare or pay any
dividend on the Common Stock payable in Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of Cumulative Redeemable Preferred Shares were
entitled immediately prior to such event under clause (ii) 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) Dividends shall begin to accrue and be cumulative on outstanding
Cumulative Redeemable Preferred Shares from the Quarterly Dividend Payment Date
next preceding the date of issue of such Cumulative Redeemable Preferred 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 Cumulative Redeemable Preferred
Shares entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of
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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. No dividends shall be paid upon or declared and set apart for any
Cumulative Redeemable Preferred Shares for any dividend period unless at the
same time a dividend for the same dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid upon or declared
and set apart for all Serial Preferred Stock of all series then outstanding and
entitled to receive such dividend. The Board of Directors may fix a record date
for the determination of holders of Cumulative Redeemable Preferred Shares
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 40 days prior to the date fixed for the
payment thereof.
Section 4. Subject to the provisions of Section 6(b)(iii) of Division A and
in accordance with Section 4 of Division A, the Cumulative Redeemable Preferred
Shares shall be redeemable from time to time at the option of the Board of
Directors of the Company, as a whole or in part, at any time at a redemption
price per share equal to one hundred times the then applicable Purchase Price as
defined in that certain Rights Agreement, dated as of January 25, 1989 between
the Company and AmeriTrust Company National Association (the "Rights
Agreement"), as the same may be from time to time amended in accordance with its
terms, which Purchase Price is $95 as of January 25, 1989, subject to adjustment
from time to time as provided in the Rights Agreement. Copies of the Rights
Agreement are available from the Company upon request. In case less than all of
the outstanding Cumulative Redeemable Preferred Shares are to be redeemed, the
Company shall select by lot the shares so to be redeemed in such manner as shall
be prescribed by its Board of Directors.
Section 5. (a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company (hereinafter referred to
as a "Liquidation"), no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon Liquidation) to the
Cumulative Redeemable Preferred Shares, unless, prior thereto, the holders of
Cumulative Redeemable Preferred Shares shall have received at least an amount
per share equal to one hundred times the then applicable Purchase Price as
defined in the Rights Agreement, as the same may be from time to time amended in
accordance with its terms (which Purchase Price is $95 as of January 25, 1989),
subject to adjustment from time to time as provided in the Rights Agreement,
plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not earned or declared, to the date of such payment, provided that
the holders of shares of Cumulative Redeemable Preferred Shares shall be
entitled to receive at least an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of Common Stock (the "Cumulative
Redeemable Preferred Shares Liquidation Preference").
(b) In the event, however, that the net assets of the Company are not
sufficient to pay in full the amount of the Cumulative Redeemable Preferred
Shares Liquidation Preference and the liquidation preferences of all other
series of Serial Preferred Stock, if any, which rank on a parity with the
Cumulative Redeemable Preferred Shares as to distribution of assets in
Liquidation, all shares of this Series and of such other series of Serial
Preferred Stock shall share ratably in the distribution of assets (or proceeds
thereof) in Liquidation in proportion to the full amounts to which they are
respectively entitled.
(c) In the event the Company shall at any time declare or pay any dividend
on the Common Stock payable in Common Stock, or effect a subdivision or
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of Cumulative Redeemable Preferred Shares were
entitled immediately prior to such event pursuant to the proviso set forth in
paragraph (a) above, shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of
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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.
(d) The merger or consolidation of the Company into or with any other
corporation, or the merger of any other corporation into it, or the sale, lease
or conveyance of all or substantially all the property or business of the
Company, shall not be deemed to be a Liquidation for the purposes of this
Section 5.
Section 6. The Cumulative Redeemable Preferred Shares shall not be
convertible into Common Stock.
DIVISION B
EXPRESS TERMS OF THE COMMON STOCK
The Common Stock shall be subject to the express terms of the Serial
Preferred Stock and any series thereof. Each share of Common Stock shall be
equal to every other share of Common Stock. The holders of shares of Common
Stock shall be entitled to one vote for each share of such stock upon all
matters presented to the shareholders. The holders of shares of Common Stock
shall have no preemptive rights to purchase or have offered to them for purchase
any shares of Common Stock which at any time shall be required for issuance in
fulfillment of the provisions of any series of the Company's Serial Preferred
Stock.
FIFTH: No holders of any class of shares of the Company shall have any
preemptive right to purchase or have offered to them for purchase any shares or
other securities of the Company, whether now or hereafter authorized.
SIXTH: (A) Notwithstanding any provision of the Ohio Revised Code now or
hereafter in force requiring for any purpose the vote, consent, waiver or
release of the holders of shares entitling them to exercise two-thirds, or any
other proportion, of the voting power of the Company or of any class or classes
of shares thereof, such action, unless otherwise expressly required by statute
or by the Articles of the Company, may be taken by the vote, consent, waiver or
release of the holders of shares entitling them to exercise a majority of the
voting power of the Company or of such class or classes.
(B) The affirmative vote (i) of the holders of shares entitling them to
exercise two-thirds of the voting power of the Company, and (ii) of the holders
of two-thirds of the shares of Common Stock at the time outstanding, given in
person or by proxy at a meeting called for the purpose at which the holders of
Common Stock shall vote separately as a class, shall be necessary:
(a) to approve (i) the sale, exchange, lease, transfer or other
disposition by the Company of all, or substantially all, of its assets or
business to a related corporation or an affiliate of a related corporation,
or (ii) the consolidation of the Company with or its merger into a related
corporation or an affiliate of a related corporation, or (iii) the merger
into the Company of a related corporation or an affiliate of a related
corporation, or (iv) a combination or majority share acquisition in which
the Company is the acquiring corporation and its voting shares are issued
or transferred to a related corporation or an affiliate of a related
corporation or to shareholders of a related corporation or an affiliate of
a related corporation; or
(b) to approve any agreement, contract or other arrangement with a
related corporation providing for any of the transactions described in
subparagraph (a) above; or
(c) to effect any amendment of the Articles of the Company which
changes the provisions of this Paragraph (B).
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For the purpose of this Paragraph (B), (i) a "related corporation" in respect of
a given transaction shall be any corporation which, together with its affiliates
and associated persons, owns of record or beneficially, directly or indirectly,
more than 5% of the shares of any outstanding class of stock of the Company
entitled to vote upon such transaction, as of the record date used to determine
the shareholders of the Company entitled to vote upon such transaction; (ii) an
"affiliate" of a related corporation shall be any individual, joint venture,
trust, partnership or corporation which, directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the related corporation; (iii) an "associated person" of a related
corporation shall be any officer or director or any beneficial owner, directly
or indirectly, of 10% or more of any class of equity security, of such related
corporation or any of its affiliates; (iv) the terms "combination", "majority
share acquisition" and "acquiring corporation" shall have the same meaning as
that contained in Section 1701.01 of the Ohio General Corporation Law or any
similar provision hereafter enacted.
The determination of the Board of Directors of the Company, based on
information known to the Board of Directors and made in good faith, shall be
conclusive as to whether any corporation is a related corporation as defined in
this Paragraph (B).
SEVENTH: The Company may from time to time, pursuant to authorization by
the Board of Directors and without action by the shareholders, purchase or
otherwise acquire shares of the Company of any class or classes in such manner,
upon such terms and in such amounts as the Board of Directors shall determine;
subject, however, to such limitation or restriction, if any, as is contained in
the express terms of any class of shares of the Company outstanding at the time
of the purchase or acquisition in question.
EIGHTH: No shareholder of the Company may cumulate his voting power.
NINTH: These Amended Articles of Incorporation shall supersede and take the
place of the heretofore existing Articles of Incorporation of the Company and
all amendments thereto.
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