1
Exhibit (3)(a)
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
HUFFY CORPORATION
RICHARD L. MOLEN, President and Chief Executive Officer, and
NANCY A. MICHAUD, Secretary, of HUFFY CORPORATION, an Ohio corporation for
profit, do hereby certify that at a meeting of the Board of Directors of said
Corporation, duly called and held on the 9th day of December, 1994, at which
all of the Directors were present, the following resolution amending the
Amended Articles of Incorporation was adopted by the affirmative vote of eleven
of the twelve Directors of the Corporation, pursuant to the authority granted
to the Board of Directors by the Corporation's Amended Articles of
Incorporation, Article Fourth, Section 2, under and pursuant to Section
1701.70(B)(1) of the Ohio Revised Code:
RESOLVED, that Article Fourth, Section 4 is hereby amended in
its entirety by substituting the following terms and
provisions of Series C Preferred Stock in place of the prior
terms and provisions thereof.
Section 4. ADDITIONAL TERMS AND PROVISIONS OF
SERIES C PREFERRED STOCK.
In addition to the express terms set forth in Section 2 of this
Article Fourth which are applicable to all series of Preferred Stock,
additional express terms of the Series C Preferred Stock are as
follows:
(a) The designation of such series shall be Series C
Cumulative Preferred Stock ("Series C Preferred Stock") and such
series shall consist of 200,000 shares. Such number of shares may be
increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series
C Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the corporation
convertible into Series C Preferred Stock.
(b) The holders of shares of Series C Preferred Stock
shall be entitled to receive, as and when declared by the Board of
Directors, out of funds legally available for the payment thereof,
quarterly dividends payable in cash on the 1st day of February, May,
August and November 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 C Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) Ten
Dollars ($10.00) or (b) subject to the provision for adjustment
hereinafter set forth, 100
2
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 shares of
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 share or fraction of a
share of Series C Preferred Stock. In the event the corporation shall
at any time declare or pay any dividend on the Common Stock payable in
shares of 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 shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series C 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.
(c) The corporation shall declare a dividend or
distribution on the Series C Preferred Stock as provided in paragraph
(b) of this Section immediately after it declares 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 Ten Dollars
($10.00) per share on the Series C Preferred Stock shall nevertheless
be accrued and payable on such subsequent Quarterly Dividend Payment
Date.
(d) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series C 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 C 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 C 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 C
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
3
(e) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock as provided in
Section 4(b) of this Article Fourth are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series C Preferred Stock outstanding shall
have been paid in full, the corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to
the Series C Preferred Stock;
(ii) declare or pay dividends, 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 C Preferred Stock, except
dividends paid ratably on the Series C
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) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to
the Series C Preferred Stock, provided that
the Corporation may at any time redeem,
purchase or otherwise acquire shares of any
such junior stock in exchange for shares of
any stock of the Corporation ranking junior
(either as to dividends or upon dissolution,
liquidation or winding up) to the Series C
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series C
Preferred Stock, or any shares of stock
ranking on a parity with the Series C
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 respective annual
dividend rates and other relative rights and
preferences of the respective series and
classes, shall determine in good faith will
result in fair and equitable treatment among
the respective series or classes.
(f) The corporation shall not permit any subsidiary of
the corporation to purchase or otherwise acquire for consideration any
shares of Series C Preferred Stock, or any shares of stock ranking on
a parity with the Series C Preferred Stock, unless the corporation
could, under Section 3(e) of this Article Fourth purchase or
otherwise acquire such shares at such time and in such manner.
4
(g) Any shares of Series C Preferred Stock purchased or
otherwise acquired by the corporation in any manner whatsoever shall
be retired and cancelled promptly after the acquisition thereof.
Except as contemplated herein in this Article Fourth, all such shares
shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance
set forth herein or as otherwise required by law.
(h) Upon any liquidation, dissolution or winding up of
the corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Preferred
Stock unless, prior thereto, the holders of shares of Series C
Preferred Stock shall have received One Hundred Dollars ($100.00) per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series C Preferred
Stock shall be entitled to receive 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 shares of Common stock or (2) to the holders of shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Preferred Stock, except
distributions made ratably on the Series C Preferred Stock and all
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. In the event the corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares
of 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 shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of
shares of Series C Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) 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.
(i) In case the corporation shall enter into any
consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case
each share of Series C Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the
event the corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of 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 shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange
5
or change of shares of Series C Preferred Stock 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.
(j) The shares of Series C Preferred Stock shall not be
redeemable.
(k) The Series C Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, pari passu
to all series of any other class of the corporation's Preferred Stock.
IN WITNESS WHEREOF,RICHARD L. MOLEN, President and Chief Executive
Officer, and NANCY A. MICHAUD, Secretary, of HUFFY CORPORATION, acting for and
on behalf of the Corporation, have hereunto subscribed their names this
30th day of January, 1995.
/s/ Richard L. Molen
-------------------------------------
Richard L. Molen
President and Chief Executive Officer
/s/ Nancy A. Michaud
-------------------------------------
Nancy A. Michaud
Secretary