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EXHIBIT 3(i)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
OHM CORPORATION
FIRST: The name of the Corporation (hereinafter called the
"Corporation") is OHM Corporation.
SECOND: The principal office of the Corporation is located in
Findlay, Hancock County, Ohio.
THIRD: The Corporation is formed for the purpose of engaging 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, the Ohio General
Corporation Law, as now in effect or hereafter amended.
FOURTH: The Corporation shall have authority to issue and have
outstanding capital stock in the total amount of Fifty-Two Million (52,000,000)
shares, consisting of Fifty Million (50,000,000) shares of Common Stock with a
par value of $0.10 per share, One Million (1,000,000) shares of Class A
Preferred Stock, par value $10.00 per share, and One Million (1,000,000) shares
of Class B Preferred Stock, par value $10.00 per share.
(A) EXPRESS TERMS OF THE COMMON STOCK
The shares of Common Stock shall be subject to the terms of
Class A Preferred Stock and Class B Preferred Stock (collectively, "Preferred
Stock") and the express terms of any series thereof. 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. Subject to any rights to receive
dividends to which the holders of the outstanding shares of Preferred Stock, if
any, may be entitled, the holders of shares of Common Stock shall be entitled
to receive dividends, if and when declared, payable from time to time by the
Board of Directors from funds legally available for the payment of such
dividends. In the event of voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, all assets and funds remaining after payment
to holders of the Preferred Stock of the full amount to which they are entitled
shall be divided and distributed among the holders of the Common Stock
according to their respective shares.
(B) EXPRESS TERMS OF CLASS A PREFERRED STOCK
The shares of Class A Preferred Stock may be issued from time
to time in one or more series of any number of shares, provided that the
aggregate number of shares issued and not cancelled of any and all such series
shall not exceed the total number of shares of Class A Preferred Stock
authorized in this Article FOURTH. All shares of Class A Preferred Stock shall
be of equal rank and shall be identical, except with respect to the matters
that may be fixed by the Board of Directors as hereinafter provided, and each
share of each series shall be identical to all other shares of such series,
except as to the date from which dividends are cumulative. Subject to the
provisions of this paragraph (B), which provisions shall apply to all Class A
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:
(1) the designation of the series, which may be
distinguishing number, letter or title;
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(2) the number of shares of the series, which number the
Board of Directors may from time to time (except where otherwise
provided in the creation of the series) increase or decrease (but not
below the number of shares thereof then outstanding);
(3) the dividend rate of the series;
(4) the dates of payment of dividends and the dates from
which dividends of the series shall be cumulative;
(5) the redemption rights and price or prices for shares
of the series;
(6) sinking fund requirements, if any, for the purchase
or redemption of shares of the series;
(7) the liquidation price payable and the preference, if
any, on shares of the series in the event of any liquidation,
dissolution or winding up of the affairs of the Corporation;
(8) the designations, preferences, and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions on such Preferred Stock;
(9) 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; and
(10) such other terms as the Board of Directors may by law
from time to time be permitted to fix or change.
The Board of Directors is authorized to adopt from time to
time amendments to the Articles of Incorporation fixing or changing, with
respect to each such series, the matters described in the preceding clauses (1)
to (10) of this paragraph (B).
Shares of Class A Preferred Stock shall be entitled to voting
rights as follows:
(1) Except as otherwise required by law or the Articles
of Incorporation of the Corporation or this paragraph (B), holders of
the Class A Preferred Stock, voting together as one class with the
holders of the Common Stock and with the holders of any other class or
series of Preferred Stock who are similarly entitled to vote, shall be
entitled to vote for the election of directors and all other matters
submitted to a vote of shareholders of the Corporation.
(2) During any period in which dividends on the Class A
Preferred Stock are cumulatively in arrears in the amount of six or
more full quarterly dividends, the holders of the Class A Preferred
Stock, voting together as a class with the holders of any other class
or series of Preferred Stock who are similarly entitled to vote, will
have the right to elect two directors which two directorships shall be
in addition to that number of directors then determined as
constituting the number of members of the Board of Directors pursuant
to the Regulations of the Corporation.
(3) The approval of a majority of the outstanding shares
of Class A Preferred Stock voting together as a class shall be
required in order to amend the Articles of Incorporation of the
Corporation to affect adversely the rights of the holders of the Class
A Preferred Stock or to take any actions that would result in the
creation of or an increase in the number of authorized shares senior
or superior with respect to dividends or upon liquidation to the Class
A Preferred Stock.
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(C) EXPRESS TERMS OF CLASS B PREFERRED STOCK
The shares of Class B Preferred Stock may be issued from time
to time in one or more series. All shares of Class B 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
this paragraph (C), which provisions shall apply to all Class B 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:
(1) the designation of the series, which may be
distinguishing number, letter or title;
(2) the number of shares of the series, which number the
Board of Directors may from time to time (except where otherwise
provided in the creation of the series) increase or decrease (but not
below the number of shares thereof then outstanding);
(3) the dividend rate of the series;
(4) the dates of payment of dividends and the dates from
which dividends of the series shall be cumulative;
(5) the redemption rights and price or prices for shares
of the series;
(6) sinking fund requirements, if any, for the purchase
or redemption of shares of the series;
(7) the liquidation price payable on shares of the series
in the event of any liquidation, dissolution or winding up of affairs
of the Corporation;
(8) 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;
(9) restrictions on the issuance of shares of any class
or series; and
(10) such other terms as the Board of Directors may by law
from time to time be permitted to fix or change.
The Board of Directors is authorized to adopt from time to
time amendments to the Articles of Incorporation fixing or changing, with
respect to each such series, the matters described in the preceding clauses (1)
to (10) of this paragraph (C).
Shares of Class B Preferred Stock shall not be entitled to
voting rights except to the extent described in the following clauses (1) and
(2) of this paragraph (C).
(1) During any period in which dividends on the Class B
Preferred Stock are cumulatively in arrears in the amount of six or
more full quarterly dividends, the holders of the Class B Preferred
Stock, voting together as a class with the holders of any other class
or series of Preferred Stock who are similarly entitled to vote, will
have the right to elect two directors which two directorships shall be
in addition to that number of directors then determined as
constituting the number of members of the Board of Directors pursuant
to the regulations of the Corporation.
(2) The approval of a majority of the outstanding shares
of Class B Preferred Stock voting together as a class shall be
required in order to amend the Articles of Incorporation of the
Corporation
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to affect adversely the rights of the holders of the Class B Preferred
Stock or to take any action that would result in the creation of or an
increase in the number of authorized shares senior or superior with
respect to dividends or upon liquidation to the Class B Preferred
Stock.
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: To the extent not prohibited by law, the Board of Directors
may authorize the purchase by the Corporation of shares of any class issued by
it.
SEVENTH: No holder of any class of shares of the Corporation shall,
as such holder, have any preemptive or preferential right to purchase or
subscribe to any shares of any class of stock of the Corporation, whether now
or hereafter authorized, whether unissued or in treasury, or to purchase any
obligations convertible into shares of any class of stock of the Corporation,
which at any time may be proposed to be issued by the Corporation or subjected
to rights or options to purchase granted by the Corporation.
EIGHTH: No holder of shares of any class of the Corporation shall
have the right to cumulate the voting power in the election of the Board of
Directors, and the right to cumulate voting described in Ohio Revised Code
Section 1701.55 is hereby specifically denied to the holders of shares of any
class of the Corporation.
NINTH: The Corporation may create and issue, whether or not in
connection with the issue and sale of any shares of stock or other securities
of the Corporation, rights or options entitling the holders thereof to purchase
from the Corporation any shares of its capital stock of any class or classes to
the extent such shares are authorized by these Articles, such rights or options
to be evidenced by or in such instrument or instruments as shall be approved by
the Board of Directors. The terms upon which any such shares may be purchased
upon the exercise of any such right or option, including without limitation the
time or times (which may be limited or unlimited in duration) at or within
which, and the price or prices at which, any such shares may be purchased,
shall be as determined as set forth or incorporated by reference in a
resolution adopted by the Board of Directors providing for the creation and
issue of such rights or options.
TENTH: No person shall make a Control Share Acquisition without the
prior authorization of the Corporation's shareholders.
(A) In order to obtain authorization of a Control Share
Acquisition by the Corporation's shareholders, a Person shall deliver a notice
(the "Notice") to the Corporation at its principal place of business that sets
forth the following information:
(1) The identity of the Person who is giving the Notice;
(2) A statement that the Notice is given pursuant to this
Article TENTH;
(3) The number and class of shares of the Corporation
owned, directly or indirectly, by the Person who gives the Notice;
(4) The range of voting power under which the proposed
Control Share Acquisition would, if consummated, fall;
(5) A description in reasonable detail of the terms of
the proposed Control Share Acquisition; and
(6) Representations, supported by reasonable evidence,
that the proposed Control Share Acquisition, 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.
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(B) (1) The Board of Directors of the Corporation shall,
within ten (10) days after receipt by the Corporation of a Notice that
complies with paragraph (A), 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 meeting if they make a determination within ten (10) days after
receipt of the Notice (i) that the Notice was not given in good faith,
(ii) that the proposed Control Share Acquisition would not be in the
best interests of the Corporation and its shareholders, or (iii) that
the Person who delivered the Notice has failed to adequately
demonstrate that such Person has the financial capacity to make the
proposed Control Share Acquisition or that the proposed Control Share
Acquisition would not be contrary to law if consummated. The Board of
Directors may adjourn such meeting if, prior to such meeting, (i) the
Corporation has received a Notice from any other Person or (ii) a
merger, consolidation or sale of assets of the Corporation has been
approved by the Board of Directors and the Board of Directors has
determined that the Control Share Acquisition proposed by such other
Person or the 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.
(2) For purposes of making a determination that a special
meeting of shareholders should not be called pursuant to this
paragraph (B), 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 making 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 (B), "disinterested directors" shall
mean directors whose material contacts with the Corporation are
limited principally to activities as a director or shareholder.
Persons who have substantial, recurring business or professional
contracts 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.
(C) The Corporation shall give notice of such special meeting to
all shareholders of record as of the record date set for such meeting as
promptly as practicable. 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.
(D) The Person who delivered the Notice may make the proposed
Control Share Acquisition if both of the following occur: (i) the shareholders
of the Corporation authorize such acquisition at the special meeting called by
the Board of Directors and held for that purpose, and at which a quorum is
present, by an affirmative vote of a majority of the Voting Shares (as defined
in Section 1.02 of the Company's Regulations) represented at such meeting in
person or by proxy and by a majority of the portion of such Voting Shares
represented at such meeting in person or by proxy excluding the votes of
Interested Shares; and (ii) such acquisition is consummated, in accordance with
the terms so authorized, not later than 360 days following such shareholder
authorization of the Control Share Acquisition.
(E) Shares issued or transferred to any Person in violation of
this Article TENTH shall be valid only with respect to such amount of shares as
does not result in a violation of this Article TENTH and such issuance or
transfer shall be null and void with respect to the remainder of such shares
(any such remainder of shares being hereinafter called "Excess Shares"). If
the second clause of the foregoing sentence is determined to be invalid by
virtue of any legal decision, statute, rule or regulation, any Person who holds
Excess Shares in violation of the Article TENTH shall be conclusively deemed to
have acted as an agent on behalf of the Corporation in acquiring such Excess
Shares and to hold such Excess Shares on behalf of the Corporation. While held
by any Person in violation of this Article TENTH, Excess Shares shall not be
entitled to any voting rights, shall not be
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considered to be outstanding for quorum or voting purposes, and shall not be
entitled to receive dividends or any other distribution with respect to such
Excess Shares. Any such Person who receives dividends 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 holder of 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 TENTH. Upon
such permitted transfer, the Corporation shall pay or distribute to the
transferee any dividends or other distributions on the Excess Shares not
previously paid or distributed.
(F) As used in this Article TENTH:
(1) "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.
(2)(a) "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 may exercise or direct the exercise of voting power
as provided in this paragraph (F)(2)(a), 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 or more 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 TENTH 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 without further instruction from others at a meeting of
shareholders called under this Article TENTH. For purposes of
this Article TENTH, 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) The acquisition of any shares of the
Corporation does not constitute a Control Share Acquisition
for the purpose of this Article TENTH 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 TENTH,
in connection with an offering of the securities of
the Corporation to the public;
(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 TENTH;
(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 TENTH;
(iv) Pursuant to a merger or consolidation
adopted, or a combination or majority share
acquisition authorized, by shareholder vote in
compliance with the
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provisions of Section 1701.78 or Section 1701.83 of
the Ohio Revised Code if the Corporation is the
surviving or new corporation in the merger or
consolidation or is the acquiring corporation in the
combination or majority share acquisition and if the
vote of shareholders of the surviving, new, or
acquiring corporation is required by the provisions of
Section 1701.78 or Section 1701.83 of the Ohio
Revised Code;
(v) Pursuant to a transaction which has
received the prior authorization of the Board of
Directors of the Corporation, which authorization
makes specific reference to this paragraph
(F)(2)(b)(v) and is determined to be in the best
interests of the Corporation and its shareholders; or
(vi) Prior to March 20, 1994; or
(vii) Pursuant to a contract existing prior to
March 20, 1994;
The acquisition by any Person of shares of the
Corporation in a manner described under this paragraph
(F)(2)(b) shall be deemed to be a Control Share Acquisition
authorized pursuant to this Article TENTH within the range of
voting power under paragraph (F)(2)(a)(i), (ii) or (iii) of
this Article TENTH that such Person is entitled to exercise
after such acquisition, provided that, in the case of an
acquisition in a manner described under paragraph
(F)(2)(b)(ii) or (iii), the transferor of such shares to such
Person had previously obtained any authorization of
shareholders required under this Article TENTH in connection
with such transferor's acquisition of shares of the
Corporation.
(c) The acquisition of shares of the Corporation
in good faith and not for the purpose of circumventing this
Article TENTH, the acquisition of which (i) had previously
been authorized by shareholders in compliance with this
Article TENTH or (ii) would have constituted a Control Share
Acquisition but for paragraph (F)(2)(b), does not constitute a
Control Share Acquisition for the purpose of this Article
TENTH unless such acquisition entitles any Person, directly or
indirectly, 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 TENTH, or deemed to be so authorized under paragraph
(F)(2)(b).
(3) "Interested Shares" means Voting Shares with respect
to which any of the following Persons may exercise or direct the
exercise of the voting power:
(a) any Person whose Notice prompted the calling
of the meeting of shareholders;
(b) any officer of the Corporation elected or
appointed by the directors of the Corporation; and
(c) any employee of the Corporation who is also a
director of the Corporation.
(G) No proxy appointed for or in connection with the shareholder
authorization of a Control Share Acquisition pursuant to this Article TENTH is
valid if it provides that it is irrevocable. No such proxy is valid unless it
is sought, appointed, and received both:
(1) In accordance with all applicable requirements of law;
and
(2) 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.
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(H) Proxies appointed for or in connection with the shareholder
authorization of a Control Share Acquisition pursuant to this Article TENTH
shall be revocable at all times prior to the obtaining of such shareholder
authorization, whether or not coupled with an interest.
(I) Notwithstanding any other provisions of these Articles of
Incorporation or the Regulations of the Corporation, as the same may be in
effect from time to time, or any provisions of law that might otherwise permit
a lesser vote of the directors or shareholders, but in addition to any
affirmative vote of the directors or the holders of any particular class or
series of shares required by law, the Articles of Incorporation or the
Regulations of the Corporation, as the same may be in effect from time to time,
the affirmative vote of at least eighty-five percent (85%) of the Voting Shares
shall be required to alter, amend or repeal this Article TENTH or adopt any
provisions in the Articles of Incorporation or Regulations of the Corporation,
as the same may be in effect from time to time, that are inconsistent with the
provisions of this Article TENTH.
(J) Each certificate representing shares of the Corporation's
capital stock shall contain the following legend:
"Transfer of the shares represented by this Certificate is subject to
the provisions of Article TENTH 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 TENTH as the same may
be in effect from time to time and covenants with the Corporation and
each shareholder thereof from time to time to comply with the
provisions of said Article TENTH as the same may be in effect from
time to time."
ELEVENTH: 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 only apply to this Corporation with respect to any
particular Control Share Acquisition attempt, as such is defined in Section
1701.831 of the Ohio Revised Code, in the event that there is a determination
by a court of competent jurisdiction with respect to which no appeal is pending
that the provisions of Article TENTH of these Articles of Incorporation shall
not be applicable to a particular Control Share Acquisition attempt or in the
event that Article TENTH of these Articles of Incorporation, as such Articles
of Incorporation may be amended from time to time, ceases to be an Article of
these Articles of Incorporation, disregarding any renumbering of such Article
TENTH resulting from any amendment of these Articles of Incorporation.
TWELFTH: The Corporation reserves the right to amend or repeal any
provision contained in these Articles of Incorporation in the manner prescribed
by the Ohio General Corporation Law. However, the provisions set forth in
Article EIGHTH, Article TENTH, Article ELEVENTH and this Article TWELFTH of
these Articles of Incorporation may not be altered, amended, superseded or
repealed in any respect, unless such action is approved by the affirmative vote
of the holders of shares representing at least 85% of the shares of the
Corporation entitled to vote for the election of directors, voting as a class.
All rights conferred in these Articles of Incorporation are granted subject to
the reservation set forth in this Article TWELFTH.
IN WITNESS WHEREOF, the undersigned has executed these Articles this
____ day of May, 1994.
OHM CORPORATION
/s/ RANDALL M. WALTERS
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Randall M. Walters, Secretary
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