1
CERTIFICATE OF AMENDMENT
TO
AMERICAN FINANCIAL CORPORATION
Carl H. Lindner, who is President and James E. Evans, who is Secretary of the
above named Ohio corporation for profit with its principal location at 1 East
Fourth Street, Cincinnati, Ohio do hereby certify that in a writing signed by
all of the Directors pursuant to Section 1701.54 of the Revised Code, the
following resolution was adopted pursuant to Section 1701.72(B) of the Revised
Code:
RESOLVED: That pursuant to Ohio General Corporation Law, Section
1701.72(B), the Company's Consolidated Articles of Incorporation be,
and the same are hereby, amended to consolidate and amend the
previously Consolidated Articles of Incorporation and all previously
adopted amendments to the Consolidated Articles of Incorporation now
in force and to supersede and take the place of the existing
Consolidated Articles of Incorporation and all amendments thereto.
(Consolidated Articles of Incorporation attached)
IN WITNESS WHEREOF, the above named officers acting for and on behalf of the
corporation, have hereunto subscribed their names this 28th day of October
1981.
By: /s/ Carl H. Lindner
-------------------------------
Carl H. Lindner, President
By: /s/ James E. Evans
-------------------------------
James E. Evans, Secretary
2
CONSOLIDATED
ARTICLES OF INCORPORATION
OF
AMERICAN FINANCIAL CORPORATION
AS AMENDED THROUGH OCTOBER 28, 1981
-----------------------------------
FIRST
-----
The name of said corporation shall be AMERICAN FINANCIAL CORPORATION.
SECOND
------
The place in Ohio where its principal office is to be located is One East
Fourth Street, Cincinnati, Ohio.
THIRD
-----
The purpose or purposes for which it is formed are:
(1) To buy, lease acquire, own, hold, exchange, sell, trade, mortgage or
encumber, maintain and repair and to do all things necessary,
incidental or related to the owning and operating of a real estate
business.
(2) To invest in, hold, sell, underwrite, pledge and otherwise deal with
stock, shares, bonds, debentures and securities of any corporation,
public or private, any sovereign government, state government,
governmental agency or municipality; or obligations of any trust,
syndicates, partnerships or individuals, to make advances upon, hold
in trust, issue on commission, sell or dispose of any of the
investments aforesaid.
(3) To manufacture, grow, raise, purchase or otherwise acquire, hold, own,
sell, assign, transfer, lease, exchange, invest in, mortgage, pledge,
or otherwise encumber or dispose of and generally to deal and trade
in, goods, wares, merchandise, crops, livestock, and property of every
kind, nature and description.
(4) To conduct a general agency business for the writing, procuring and
solicitation of insurance, to contract with insurers and insurance
companies, and to act for them as general or special agents or in any
other capacity, excepting life insurance in which life insurance
business this company shall not in any way be authorized to act; to
contract with banks, trust companies and other fiduciaries as to all
relations incident to the business herein specified; and in general to
day any and all acts and business in any way
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connected with or incident to the relations herein set forth.
(5) To carry on the business of insurance agents and brokers for and in
any and all classes and species of insurance including theft, marine,
fire, life, accident, indemnity, guaranty, fidelity, casualty,
windstorm, and workmen's compensation insurance, excepting life
insurance, and to act as agent, manager, representative and
attorney-in-fact for underwriters and insurance companies in the
issuance of any such insurance, to carry on a general insurance agency
business, to carry on the business of adjusters in all its branches,
and to act as agent and representative for any persons, firms,
associations and corporations in connection with any matter of
salvage, including the adjustment, settlement, payment and collection
of salvage claims. Provided, however, nothing in this paragraph shall
authorize the company to conduct any activity in the sale of life
insurance or to in any way act with respect to the sale of life
insurance.
(6) To transact and carry on all or any other business which may be
necessary, incidental, related or proper to the exercise of any or all
of the aforesaid purposes and powers.
(7) Generally, and without in any manner limiting or restricting any of
the independent powers herein above enumerated, to do such acts and
things and to exercise any and all powers to the same extent as a
natural person might or could lawfully do to the extent allowed by
law. In the execution of the foregoing purposes and powers and in the
attainment of the objectives of the corporation, it shall have and
possess all powers granted to it by the statutes under which it is
being organized, including the power --
(a) To purchase, receive, lease as lessee, take by gift, devise or
bequest, or otherwise acquire, and to hold, use, lease as
lessor, encumber, sell, transfer and dispose of property, real
and personal, tangible, and intangible, within or without the
state.
(b) To make contracts and incur liabilities.
(c) To acquire, hold, encumber, transfer, guarantee and dispose of
shares, bonds, and other evidences of indebtedness,
securities, and contracts of other persons, associations and
corporations, domestic or foreign, and to form or acquire the
control of other corporations.
(d) To conduct business in this state and elsewhere.
(e) To borrow money, and to issue, sell and pledge its bonds,
notes and other evidences of indebtedness, and to secure any
of its obligations by mortgage, pledge or deed of trust of all
or any of its property.
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(f) To purchase, own and hold, and to sell and transfer (but not
to vote) shares of its own capital stock if and when the
capital of the corporation is not thereby impaired.
(g) To take licenses in respect of, use and operate or manufacture
under any letters patent of the United States of America or
any other country or government, any applications therefor and
any and all rights and privileges connected therewith or any
unpatented processes therewith or any unpatented processes,
formulae or inventions, or any copyrights granted by the
United States of America or any other country or government,
or any trade-marks, trade names, trade symbols, or other
indications of origin and ownership granted by, or recognized
under the laws of the United States of America or any other
country or government.
FOURTH
------
I. AUTHORIZED CAPITAL. The Company is authorized to issue shares of
Capital Stock designated, described and limited as follows:
A. COMMON STOCK WITHOUT PAR VALUE - 32.3 MILLION SHARES AUTHORIZED
B. PREFERRED STOCK
(1) $1 PAR, VOTING CUMULATIVE PREFERRED STOCK -- 3.5
MILLION SHARES AUTHORIZED, NONE OF WHICH IS SERIALLY
DESIGNATED.
(2) $1 PAR, NONVOTING CUMULATIVE PREFERRED STOCK -- 10
MILLION SHARES AUTHORIZED, CONSISTING OF THE
FOLLOWING DESIGNATED SERIES:
SERIES F - 8,000,000
SERIES G - 2,000,000
----------
TOTAL 10,000,000
==========
(3) $10.50 PAR, NONVOTING CUMULATIVE PREFERRED STOCK --
11.1 MILLION SHARES AUTHORIZED, CONSISTING OF THE
FOLLOWING DESIGNATED SERIES:
SERIES D - 8,375,000
SERIES E - 2,725,000
---------
TOTAL 11,100,000
==========
(4) $1.50 PAR, NONVOTING CUMULATIVE PREFERRED STOCK --
7.7 MILLION AUTHORIZED, CONSISTING OF THE FOLLOWING
DESIGNATED SERIES:
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SERIES H - 7,700,000
II. General Provisions.
------------------
A. PRE-EMPTIVE RIGHTS. No holder of any shares of the Company,
whether Common or Cumulative Preferred, shall have any pre-
emptive rights to subscribe for or to purchase any shares of
the Company of any class whether such shares or such class be
now or hereafter authorized or to purchase or subscribe for
securities convertible into or exchangeable for shares of any
class or to which shall be attached or appertain any warrants
or rights entitling the holder thereof to purchase or
subscribe for shares of any class.
B. DIVIDEND RIGHTS. The holders of the Cumulative Preferred
Stock shall be entitled to receive dividends out of any funds
of the Company at the time legally available for dividends
when and as declared by the Board of Directors at such rate
per share per annum as shall be fixed by the Board of
Directors for such series as hereinafter provided before any
sum shall be set apart or applied to the redemption or
purchase of or any dividends shall be declared or paid upon or
set apart for the Common Stock. In the event of any
liquidation, dissolution or winding up of the Company, the
holders of Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Company payment of an amount
per share as determined by the Board of Directors as a
liquidation price as hereinafter provided (including accrued
dividends, if any) before any distribution of assets shall be
made to the holders of the Common Stock.
C. VOTING RIGHTS. The voting power of the Company shall reside
in the Common Stock except as set forth hereafter with respect
to the Cumulative Preferred Stock.
Each share of Voting Cumulative Preferred Stock shall have the
same voting rights as each share of Common Stock of the
Company.
The following provisions apply to the accrual and termination
of voting rights with respect to Nonvoting Cumulative
Preferred Stock.
(1) Holders of $1 PAR NONVOTING CUMULATIVE PREFERRED
STOCK shall have no voting rights except that if and
whenever the Company shall be in arrears on the
declaration of payment of dividends on the
outstanding $1 Par Nonvoting Cumulative Preferred
Stock in an amount equivalent to Six (6) full
quarterly dividends thereon, the holders of the $1
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Par Nonvoting cumulative Preferred Stock, voting
separately as a class, shall be entitled to elect two
Directors out of the then number of Directors of the
Company, such rights shall continue until full
cumulative dividends for all past dividend periods
and the dividend for the current dividend period on
the $1 Par Nonvoting Cumulative Preferred Stock shall
have been declared and paid or provided for.
(2) Holders of the $10.50 PAR NONVOTING CUMULATIVE
PREFERRED STOCK shall have no voting rights except
that if and whenever the Company shall be in arrears
on the declaration of payment of dividends on said
Stock as hereinafter provided, or be in default of
its obligation to redeem said Stock in holders of all
of the $10.50 Par Shares, voting separately as a
class, shall be entitled to elect, at any one time,
the highest number of Directors of the Company that
results from applying the two following formulae:
During any time in which the following number
of semi-annual installments of dividends
whether or not consecutive have not been paid
in whole or in part when due, and as long as
the same remain unpaid in whole or in part,
or in which the following number of
redemption payments, whether or not
consecutive, have not been made when due, and
as long as they are not made in whole or in
part:
Number of Number of Authorized
Semi-Annual Annual Number of
Dividend Redemption AFC
Installments Payments Directors
------------ ---------- -----------
2 1 Smallest number
constituting at
least 25%
4 2 Smallest number
constituting at
least 40%
6 3 Smallest Number
constituting a majority
(3) In the event voting rights accrue to the holders of
Nonvoting cumulative Preferred Stock as described in
(1) and/or (2) above, then holders of the Voting
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Stock of the Company, voting separately as a class,
shall be entitled to elect the remainder of the Board
of Directors.
III. Preferred Stock Series Designations.
-----------------------------------
The Board of Directors shall have the right to adopt amendments to the
Articles with respect to any unissued or treasury shares of Cumulative
Preferred Stock and thereby to fix or change: the division of such
shares into series and the designation and authorized number of shares
of each series; the dividend rate; the dates of payment of dividends;
the dates from which dividends are cumulative; liquidation price;
redemption rights and price; sinking fund requirement; conversion
rights; and restrictions on the issuance of shares of any class or
series.
The specific series of Cumulative Preferred Stock designated are as
follows:
SERIES D
--------
8,375,000 shares of the $10.50 Par, Nonvoting Cumulative Preferred
Stock shall be designated as Series D (hereinafter referred to as
"Share" or "Shares") and shall be issuable upon the following terms
and conditions:
A. DIVIDEND. Each of said Shares shall have an annual dividend
rate of $1.00 and no more. Said annual dividend shall be
payable in equal semi-annual installments on the 3rd day of
June and December in each year to holders of record as of the
15th day of the preceding month commencing June, 1974. Should
any semi-annual installment not be declared and paid in full
on the 3rd day of June or December, as the case may be, there
shall be payable with respect to each said installment an
additional dividend which accrues at the rate of $.04 annually
until paid. Such additional dividend shall be paid together
with the installment to which it relates. The holders of said
Shares shall be entitled to receive dividends out of any funds
of the Company which at the time are legally available for
dividends before any sum shall be set apart or applied to (i)
the redemption or purchase of or any dividends shall be
declared or paid upon or set apart for the Common Stock, or
(ii) the purchase of any shares.
B. DIVIDEND ACCRUAL. For all purposes set forth in this
amendment other than the annual dividend rate of $1.00 in
paragraph A, dividends shall be deemed to accrue on a daily
basis regardless of whether such dividends have been declared.
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C. REDEMPTION. None of said Shares shall be redeemed before
1983. In each of the years 1983 to 1992, inclusive, the
Company shall be obligated to redeem on December 3, 10% of the
total number of said Shares originally issued at the par value
of $10.50 for each of said Shares redeemed, plus any accrued
but unpaid dividends. This obligation is subject to credits
at the Company's option for the number of said Shares
purchased or redeemed by the Company otherwise than pursuant
to this requirement, and not theretofore made the basis of any
reduction in the aforesaid obligation. In addition to the
aforesaid obligation to redeem said Shares, the Company may,
at its option, redeem an additional 10% of said Shares
originally issued in each of the years 1983 to 1992,
inclusive, at the par value of $10.50 per share, plus any
accrued but unpaid dividends, such optional right of
redemption being cumulative. Any shares redeemed pursuant to
this paragraph C or which are made the basis for any reduction
in the obligation to redeem pursuant to paragraph C shall
promptly be cancelled and shall not thereafter be reissued.
With respect to the Shares to be redeemed in any year, the
Company shall select by lot those Shares which are to be
redeemed.
D. LIQUIDATION. Upon any dissolution, liquidation or winding up
of the Company, the holders of each of said Shares shall be
entitled to receive, before any payment to holders of Common
Shares, all accrued but unpaid dividends, plus the par value
of $10.50 per share and no more. The consolidation or merger
of the Company, at any time, with another corporation, or a
sale of substantially all of the assets of the Company, shall
not be construed as a dissolution, liquidation or winding up
of the Company within the meaning hereof.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares shall have
any pre-emptive rights to subscribe for or to purchase any
shares of the Company of any class whether such shares or such
class be now or hereafter authorized, or to purchase or
subscribe for securities convertible into or exchangeable for
shares of any class or to which shall be attached or appertain
any warrants or rights entitling the holder thereof to
purchase or subscribe for shares of any class.
F. AMENDMENT TO ARTICLES. The Company shall not, except upon the
affirmative vote of the holders of a majority of the Shares
outstanding at the time, amend these Articles of Incorporation
in any manner that would result in said Shares being
subordinate in terms of preference as to payments of dividends
or payments on liquidation to any other Preferred Stock of the
Company.
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G. GOVERNING TERMS. In the event that the expressed terms of
this amendment are inconsistent with other provisions of
Article Fourth with respect to the terms of the Shares, then
such terms as are expressed in this amendment shall prevail.
SERIES E
--------
2,725,000 Shares of the $10.50 Par, Nonvoting Cumulative
Preferred Stock shall be designated as Series E (hereinafter
referred to as "Share" or "Shares") and shall be issuable upon
the following terms and conditions.:
A. DIVIDEND. Each of said Shares shall have an annual dividend
rate of $1 and no more. Said annual dividend shall be payable
in equal semi-annual installments on the third day of June and
December in each year to holders of record as of the 15th day
of the preceding month, commencing June, 1976. The holders of
said Shares shall be entitled to receive dividends out of any
funds of the Company which at the time are legally available
for dividends before any sum shall be set apart or applied to
(i) the redemption or purchase of or any dividends shall be
declared or paid upon or set apart for the Common Stock, or
(ii) the purchase of any Shares.
B. REDEMPTION. None of said Shares shall be redeemed before
1986. In each of the years 1986 to 1995, inclusive, the
Company shall be obligated to redeem on December 3, 10% of the
total number of said Shares originally issued at the par value
of $10.50 for each of said Shares so redeemed, plus any
accrued but unpaid dividends. This obligation is subject to
credits at the Company's option for the number of said Shares
purchased or redeemed by the Company otherwise than pursuant
to this requirement, and not theretofore made the basis of any
reduction in the aforesaid obligation. In addition to the
aforesaid obligation to redeem said Shares, the Company may,
at its option, redeem an additional 10% of said Shares
originally issued in each of the years 1986 to 1995,
inclusive, at the par value of $10.50 per share, plus any
accrued but unpaid dividends, such optional right of
redemption being cumulative. Any Shares redeemed pursuant to
subparagraph B or which are made the basis for any reduction
in the obligation pursuant to subparagraph B shall promptly be
cancelled and shall not thereafter be reissued. With respect
to the Shares to be redeemed in any year, the Company shall
select by lot those Shares which are to be redeemed.
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C. LIQUIDATION. Upon any dissolution, liquidation or winding up
of the Company, the holders of each of said shares shall be
entitled to receive, before any payment to holders of Common
Shares, all accrued but unpaid dividends, plus the par value
of $10.50 per share and no more. The consolidation or merger
of the Company, at any time, with another corporation, or a
sale of substantially all of the assets of the Company, shall
not be construed as a dissolution, liquidation or winding up
of the Company within the meaning hereof.
D. VOTING. Notwithstanding anything to the contrary contained in
this Article Fourth, holders of said Shares shall have no
voting rights except that if and whenever the Company shall be
in arrears on the declaration of payment of two or more semi-
annual dividends, or be in default of its obligation to redeem
said shares, as provided in subparagraph B above, the holders
of all of said Shares, voting separately as a class, shall be
entitled to elect two directors of the Company.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares shall have
any preemptive rights to subscribe for or to purchase any
shares of the Company of any class whether such shares or such
class be now or hereafter authorized or to purchase or
subscribe for securities convertible into or exchangeable for
shares of any class or to which shall be attached or appertain
any warrants or rights entitling the holder thereof to
purchase or subscribe for shares of any class.
F. AMENDMENT TO ARTICLES. The Company shall not, except upon the
affirmative vote of the holders of a majority of the Shares
outstanding at the time, amend these Articles of Incorporation
in any manner that would result in said Shares being
subordinate in terms or preference as to payments of dividends
or payments on liquidation to any other Preferred Stock of the
Company.
G. GOVERNING TERMS. In the event that the expressed terms of
this amendment are inconsistent with other provisions of
Article Fourth with respect to the terms of the Shares, then
such terms as are expressed in this amendment shall prevail.
SERIES F
--------
8,000,000 shares of the $1 Par, Nonvoting Cumulative Preferred Stock
shall be designated as Series F (hereinafter referred to as "Share" or
"Shares") and shall be issuable upon the following terms and
conditions:
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A. DIVIDEND. Each of said Shares shall have an annual dividend
rate of $1.80 and no more. Said annual dividend shall be
payable in equal semi-annual installments on the 3rd day of
June and December in each year to holders of record as of the
15th day of the preceding month, commencing June 3, 1978. The
holders of said Shares shall be entitled to receive dividends
out of any funds of the Company which at the time are legally
available for dividends before any sum shall be set apart or
applied to (i) the redemption or purchase of or any dividends
shall be declared or paid upon or set apart for the Common
Stock, or (ii) the purchase of any shares.
B. REDEMPTION. None of said Shares shall be redeemed before
1987. In each of the years 1987 to 1996, inclusive, the
Company may redeem on December 3, up to 10% of the total
number of said Shares originally issued at $20 for each of
said Shares so redeemed, plus any accrued but unpaid
dividends. Any Shares redeemed pursuant to Subparagraph B
shall promptly be cancelled and shall not thereafter be
reissued as Series F Nonvoting Cumulative Preferred Stock, but
shall be restored to the status of authorized Nonvoting $1
Par, Cumulative Preferred Stock. With respect to the Shares
to be redeemed in any year, the Company shall select by lot
those Shares which are to be redeemed.
C. LIQUIDATION. Upon any dissolution, liquidation or winding up
of the Company, the holders of each of said Shares shall be
entitled to receive, before any payment to holders of Common
Shares, all accrued but unpaid dividends, plus a liquidation
value of $20 per share and no more. The consolidation or
merger of the Company, at any time, with another corporation,
or a sale of substantially all of the assets of the Company,
shall not be construed as a dissolution, liquidation or
winding up of the Company within the meaning hereof.
D. AMENDMENT TO ARTICLES. The Company shall not, except upon the
affirmative vote of the holders of a majority of the Shares
outstanding at the time, amend these Articles of Incorporation
in any manner that would result in said Shares being
subordinate in terms of preference as to payments of dividends
or payments on liquidation to any other Preferred Stock of the
Company.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares shall have
any pre-emptive rights to subscribe for or to purchase any
shares of the Company of any class whether such shares or such
class be now or hereafter authorized or to purchase or
subscribe for securities convertible into or exchangeable for
shares of any class or to which
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shall be attached or appertain any warrants or rights
entitling the holder thereof to purchase or subscribe for
shares of any class.
F. GOVERNING TERMS. In the event that the expressed terms of
this amendment are inconsistent with other provisions of
Article Fourth with respect to the terms of the Shares, then
such terms as are expressed in this amendment shall prevail.
SERIES G
--------
2,000,000 shares of the $1 Par, Nonvoting Cumulative Preferred Stock
shall be designated as Series G (hereinafter referred to as "Share" or
"Shares"), and shall be issuable upon the following terms and
conditions:
A. DIVIDEND. Each of the Shares shall have an annual dividend
rate of $1.05 and no more. Said annual dividend shall be
payable in equal semi-annual installments on the third day of
March and September in each year to holders of record as of
the 15th day of the preceding month, commencing March 3, 1980.
The holder of Shares shall be entitled to receive dividends
out of any funds of the Company, which at the time are legally
available for dividends before any sum shall be set apart or
applied to (i) the redemption or purchase of or any dividend
shall be declared or paid upon or set apart for the common
stock, or (ii) the purchase of any Shares.
B. REDEMPTION. None of the Shares shall be redeemed before March
3, 1985. At any time or from time to time after March 2,
1985, the Company may redeem all or any part of the Shares at
a redemption price of $10.50 per share plus any accrued or
declared but unpaid dividends. Any shares redeemed pursuant
to this subparagraph B shall promptly be cancelled and shall
not be thereafter reissued as Series G Nonvoting Cumulative
Preferred Stock, but shall be restored to the status of
authorized $1 Par, Non-voting Cumulative Preferred Stock.
With respect to the Shares to be redeemed, the Company shall
select by lot those shares which are to be redeemed.
C. LIQUIDATION. Upon any dissolution, liquidation or winding up
of the Company, the holders of the Shares shall be entitled to
receive, before any payment to holders of common shares, all
accrued or declared but unpaid dividends, plus a liquidation
price of $10.50 per Share and no more. The consolidation or
merger of the Company, at any time, with another corporation,
or a sale of substantially all of these assets of the Company,
shall not be construed as a dissolution, liquidation or
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winding up of the Company within the meaning hereof.
D. AMENDMENT TO ARTICLES. The Company shall not, except upon the
affirmative vote of the holders of a majority of the Shares
outstanding, at the time, amend these Articles of
Incorporation in any manner that would result in the Shares
being subordinate in terms of preference as to payment of
dividends or payments on liquidation to any other preferred
stock of the Company.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares shall have
any pre-emptive rights to subscribe for or to purchase any
shares of the Company or any class whether such shares or such
class be now or hereafter authorized to purchase or subscribe
for securities convertible into or exercisable for shares of
any class or to which shall be attached or appertain any
warrants or rights entitled the holder thereof to purchase or
subscribe for any shares of any class.
F. GOVERNING TERMS. In the event that the express terms of this
amendment are inconsistent with other provisions of Article
Fourth with respect to the terms of the Shares, then such
terms as are expressed in this amendment shall prevail.
SERIES H
--------
All 7,700,000 Shares of the $1.50 par, Nonvoting Cumulative Preferred
Stock shall be designated as Series H ("Series H Shares" or "Shares")
and shall be issuable upon the following terms and conditions:
A. DIVIDEND. Each Share shall have an annual dividend rate of
$3.95 and no more. The annual dividend shall be cumulative
and shall be payable in equal semi-annual installments on the
31st day of January and July in each year to holders of record
as of the 15th day of that month, commencing with the July
31st or January 31st next following the original issuance of
Series H shares. The holders of Series H Shares shall be
entitled to receive dividends out of any funds of the Company
which at the time are legally available for dividends before
any sum shall be set apart or applied to (i) the redemption or
purchase of or any dividends upon the Common Stock or (ii) the
purchase of any Series H Shares.
B. REDEMPTION. None of the Series H Shares shall be redeemed
before 1987. In each of the years 1987 to 1991, inclusive,
the Company shall redeem on July 31 20% of the total number of
Series H Shares originally issued, subject to credit for
purchases or retirements other than
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pursuant to redemption provisions. The redemption price shall
be $28 per Share plus any accumulated or declared but unpaid
dividends. All Shares redeemed pursuant to this paragraph
shall promptly be cancelled and shall not be reissued. Shares
to be redeemed in any give year shall be selected by the
Company by lot.
C. LIQUIDATION. Upon dissolution, liquidation or winding up of
the Company, each holder of Series H shares shall be entitled
to receive, before any payment to holders of Common Shares,
all accumulated or declared but unpaid dividends, plus a
liquidation price of $28 per share and no more. The
consolidation or merger of the Company at any time with
another corporation or a sale of substantially all of the
assets of the Company shall not be construed as a dissolution,
liquidation or winding up of the Company for purposes of this
paragraph.
D. VOTING. Notwithstanding anything to the contrary in this
Article Fourth, holders of the Series H Shares shall have no
voting rights except as provided by law and except that if at
any time the Company fails to make four consecutive dividend
payments then the number of directors constituting its Board
of Directors will be increased by two and the holders of the
shares, voting as a class with each Share having one vote,
will be entitled to elect two directors to the Board as long
as any arrearages in dividend payments remain outstanding.
Upon payment by the Company of all such dividend arrearages,
the two directors selected pursuant to this provision will
cease to be directors and the holders of Shares will have no
further right to elect directors on account of such
arrearages.
E. PRE-EMPTIVE RIGHTS. No holder of Series H Shares will have
any pre-emptive rights to subscribe for or to purchase any
shares of the Company of any class whether such shares or such
class is now or hereafter authorized or to purchase or
subscribe for securities convertible into or exchangeable for
shares of any class or to which shall be attached any warrants
or rights entitling the holder thereof to purchase or
subscribe for shares of any class.
F. AMENDMENTS TO ARTICLES. The Company shall not, except upon
the affirmative vote of the holders of two-thirds of the
Series H Shares outstanding at the time, amend these Articles
of Incorporation in any manner that would result in the Series
H Shares being subordinate in terms or preference as to
payment of dividends or payments on liquidation to any other
Preferred Stock of the Company.
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G. GOVERNING TERMS. In the event that the expressed terms of
this Section IV are inconsistent with other provisions of
Article Fourth, then such terms as are expressed in this
Section IV shall prevail.
H. UNISSUED SHARES. Any unissued Series H Shares shall revert to
the status of authorized but unissued shares of $1.50 par
Nonvoting Cumulative Preferred Stock and the Board of
Directors shall have the right to adopt amendments to the
Articles to fix or change: the division of such shares into
series and designation and authorized number of shares of each
series; the dividend rate; the dates of payment of dividends;
the shares into series and the designation and authorized
number of shares of each series; the dividend rate; the dates
of payment of dividends; the dates from which they are
cumulative; liquidation price; redemption rights and price;
sinking fund requirements; conversion rights; and restrictions
on the issuance of shares of any class or series.
In Witness Whereof, Carl H. Lindner, President, and James E. Evans, Secretary,
of AMERICAN FINANCIAL CORPORATION, acting for and on behalf of said
Corporation, have hereunto subscribed their names, and caused the seal of said
Corporation to be hereunto affixed, this 28th day of October, 1981.
AMERICAN FINANCIAL CORPORATION
By: /s/ Carl H. Lindner
--------------------------
Carl H. Lindner
President
By: /s/ James E. Evans
-------------------------
James E. Evans
Secretary
- 15 -
16
AMENDMENT TO THE
ARTICLES OF INCORPORATION
(MAY 29, 1985)
RESOLVED: That Article Fourth, Section I.B. (2) of the Company's Consolidated
Articles of Incorporation as amended through October 28, 1981, be amended to
read hereafter as follows:
"$1 Par, Non-Voting Cumulative Preferred Stock--17 million
shares authorized, consisting of the following designated
series:
Series F - 15,000,000
Series G 2,000,000
----------
TOTAL 17,000,000"; and
==========
FURTHER RESOLVED: That Article Fourth, Section III, Series F be amended to
state that 15,000,000 shares of the $1 Par, Nonvoting Cumulative Preferred
Stock shall be designated as Series F.
- 16 -
17
CERTIFICATE OF AMENDMENT
TO
THE CONSOLIDATED ARTICLES OF INCORPORATION
OF
AMERICAN FINANCIAL CORPORATION
AMERICAN FINANCIAL CORPORATION, a Corporation organized under the laws
of the State of Ohio (the "Company"), hereby certifies:
1. That in an Action in Writing signed by all the members of the
Board of Directors of the Company dated June 19, 1988, the Board of Directors
adopted the resolution attached hereto as Exhibit A proposing and declaring
advisable a certain amendment to the Consolidated Articles of Incorporation.
2. That such amendment was adopted in a writing signed by all of
the shareholders of the Company as of June 20, 1988.
IN WITNESS WHEREOF, American Financial Corporation has caused this
Certificate of Amendment to be executed on behalf of the Company by its
Chairman of the Board and its Secretary as of this 30th day of June 1988.
AMERICAN FINANCIAL CORPORATION
By: /s/ Carl H. Lindner
-----------------------------
Carl H. Lindner, Chairman of
the Board and Chief Executive
Officer
Attest:
/s/ James C. Kennedy
- -----------------------------
James C. Kennedy, Secretary
- 17 -
18
Exhibit A
RESOLVED THAT: Section I.B. of Article Fourth of the Company's Consolidated
Articles of Incorporation as amended through october 28, 1981 and subsequently
amended on May 29, 1985, is hereby amended by adding at the end thereof the
following paragraph:
(5) $.01 Par, Nonvoting cumulative Preferred Stock -- 20 million
authorized, which, pursuant to a majority vote of all of its members,
the Board of Directors shall have the right, with respect to any
unissued or treasury shares of $.01 Par, Nonvoting Cumulative
Preferred Stock and thereby to fix or change:
(1) the division of such shares into series and the designation
and authorized number of shares of each series and
(2) to provide for each such series:
(a) the dividend rates, dates of payment of dividends,
the dates from which dividends are cumulative;
(b) the amount payable in the event of involuntary or
voluntary liquidation;
(c) redemption rights and terms and prices;
(d) sinking fund provisions;
(e) conversion terms and conditions for the conversion of
shares into the same or a different number of shares of any
other class or any series of the same or any other class;
(f) voting rights in the event of dividend arrearages;
(g) restrictions on the issuance of shares of any class
or series; and
(h) such other designations, preferences and relative
participating options or other special rights and
qualifications, powers, limitations or restrictions thereon as
may be determined by the Board of Directors; all of the
foregoing to the extent authorized from time to time by the
laws of Ohio concerning stock corporations;
All of the foregoing to the extent authorized from time to time by the laws of
Ohio concerning stock corporations.
- 18 -
19
CERTIFICATE OF AMENDMENT
TO
AMERICAN FINANCIAL CORPORATION
CERTIFICATE OF DESIGNATION, PREFERENCE AND
RIGHTS OF SERIES I PREFERRED STOCK
Certificate of Designation, Preferences and Rights of Preferred Stock
by Resolution of The Board of Directors Providing for an issue of 8,000,000
shares from a class of preferred stock, par value $.01 per share, such series
designated "Series I Preferred Stock", pursuant to Section 1701.70(B)(1) of the
Ohio Revised Code.
__________________________________________________________________
We, Ronald F. Walker, President, and James C. Kennedy, Secretary of
American Financial Corporation (hereinafter referred to as the "Company"), a
corporation organized and existing under the Laws of the State of Ohio, in
accordance with the provisions of Section 1701.70(B)(1) thereof, do HEREBY
CERTIFY:
That pursuant to authority conferred upon the Board of Directors by
the Articles of Incorporation of the Company, as amended, as in effect on the
date thereof, said Board of Directors in an action taken in writing dated June
21, 1988 adopted resolutions providing for the issuance of 700,000 shares from
a class of Preferred Stock to be designated "Series I Preferred Stock", which
resolutions are as follows:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company by the Articles of Incorporation the Board of
Directors does hereby provide for the issue of a series of Preferred Stock of
the Company from the Company's class of 20,000,000 shares of $.01 par value
non-voting preferred shares, to be designated "Series I Preferred Stock"
("Series I Preferred Stock"), such issue to consist of 700,000 shares, which
number of shares may be increased or decreased (but not below the number of
shares thereof then outstanding) from time to time by the Board of Directors,
and to the extent that the voting rights, designations, powers, preferences and
relative participating, optional or other special rights and the
qualifications, limitations or restrictions of the Series I Preferred Stock are
not stated and expressed in the Articles of Incorporation, does hereby fix and
herein state and express the voting rights, designations, powers, preferences
and relative participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, as follows (all terms used
herein which are defined in the Articles of Incorporation shall be deemed to
have the meanings provided therein):
1. DIVIDENDS. The holders of the Series I Preferred Stock
- 19 -
20
shall be entitled to receive, when, as, and if declared by the Board of
Directors and out of the assets of the Company which are by law available for
the payment of dividends, cumulative preferential dividends in the manner and
at the rates set forth below. For the initial dividend payment to be made on
December 3, 1988, dividends shall accrue and be cumulative from the date of
original issue of the then outstanding shares, and for all subsequent dividend
payments, dividends shall accrue from the next preceding date on which
dividends have been paid. Dividends shall be payable semi-annually on June 3,
and December 3 of each year to holders of record as of the preceding May 15 and
November 15.
Semi-Annual Date Semi-Annual
Date Dividend Paid Rate Per Share Dividend Paid Rate Per Share
- ------------------ -------------- ------------- --------------
December 3, 1988 June 3, 1996 $1.68
thru and including December 3, 1996 $1.82
June 3, 1993 $1.26 June 3, 1997 $1.86
December 3, 1993 $1.40 December 3, 1997 $1.96
and thereafter
June 3, 1994 $1.40
December 3, 1994 $1.54
June 3, 1995 $1.54
December 3, 1995 $1.68
Dividends on shares of Series I Preferred Stock shall be paid in cash.
No dividend or other distribution whatsoever shall be declared or paid
upon or set apart for any class of stock or series thereof ranking junior to
the Series I Preferred Stock in the payment of dividends, nor shall any shares
of any class of stock or series thereof ranking junior to the Series I
Preferred Stock in payment of dividends be redeemed or purchased by the Company
or any subsidiary thereof, nor shall any moneys be paid to or made available
for a sinking fund for the redemption or purchase of any shares of any class of
stock or series thereof ranking junior to the Series I Preferred Stock in
payment of dividends, unless in each instance, full dividends on all
outstanding shares of Series I Preferred Stock for all past dividend periods
shall have been paid at the rate fixed therefor and all payments theretofore.
Cash dividends upon shares of the Series I Preferred Stock shall be
payable by check to the registered holders of Series I Preferred Stock at the
address set forth in the books and records of the Company or any transfer agent
and/or registrar appointed for the Series I Preferred Stock and shall commence
to accrue and be cumulative from their respective dates of issuance.
2. PREFERENCE ON LIQUIDATION. The amount of which the holders of
the Series I Preferred Stock shall be entitled to receive in the event of any
voluntary and involuntary liquidation
- 20 -
21
or dissolution of the Company shall be $28 per share, plus accrued but unpaid
dividends thereon to the date fixed for payment of Series I Preferred Stock.
Such amount shall be paid to the holders of the Series I Preferred Stock prior
to any distribution or payment to the holders of any class of stock or series
thereof ranking junior to the Series I Preferred Stock in the payment of
dividends or distributions of assets on liquidation.
3. REDEMPTION.
A. OPTIONAL REDEMPTION. The Company shall not have the
right to redeem any shares of Series I Preferred Stock until December 3, 1993.
Thereafter, the Company shall have the right, at its option and by resolution
of its Board of Directors, to redeem the Series I Preferred Stock out of funds
legally available therefor, as a whole or in part, at any time or from time to
time, upon payment in cash of $28 per share, plus all dividends accrued thereon
in and unpaid to the date fixed for redemption, against receipt of certificates
evidencing the shares redeemed.
B. NOTICE OF REDEMPTION. Notice of any redemption
specifying the date fixed for said redemption shall be mailed, postage prepaid,
at least 30 days but not more than 60 days prior to said redemption date to the
holders of record of the Series I Preferred Stock to be redeemed at their
respective addresses as the same shall appear on the books and records of the
Company or any transfer agent and/or registrar for the Series I Preferred
Stock. If such notice of redemption shall have been so mailed, and if on or
before the redemption date specified in such notice all funds necessary for
such redemption shall have been set aside by the Company separate and apart
from its other funds, in trust for the account of the holders of the shares so
to be redeemed, so as to be and continue to be available therefor, then, on and
after said redemption date, notwithstanding that any certificate for shares of
the Series I Preferred Stock so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, the right to receive
dividends thereon shall cease to accrue, and all rights with respect to such
shares of the Series I Preferred Stock so called for redemption shall forthwith
cease and terminate, except only the right of the holders thereof to receive
out of the funds so set aside in trust the amount payable upon redemption
thereof, but without interest.
4. VOTING RIGHTS. The only voting rights of the holders of
Series I Preferred Stock shall be as set forth below:
A. If at any time an amount equal to the full accrued dividends
for any four or more consecutive semi-annul dividends payable on the Series I
Preferred Stock pursuant to paragraph 1 hereof shall not be paid when payable,
then the number of directors constituting the Board of Directors of the Company
shall be
- 21 -
22
increased by three and the holders of the Series I Preferred Stock shall have
the right, voting as one class, to elect the directors to fill such newly
created directorships. This right shall remain vested until all dividends in
arrears on any Series I Preferred Stock have been paid, or declared and set
apart for payment, at which time (i) the right to so elect directors shall
terminate (subject to revesting in the case of any subsequent default of the
kind described above); (ii) the term of the directors then in office elected by
such holders shall terminate; and (iii) the number of directors constituting
the Board of Directors of the Company shall be reduced by the number of
directors by which it was increased pursuant to this subparagraph.
Whenever such right shall vest, it may be exercised initially
either at a special meeting of holders of such class of preferred stock or at
any annual stockholders' meeting, but thereafter it may be exercised at
stockholders' meetings called for the purpose of electing directors. A special
meeting for the exercise of such right shall be called by the Secretary of the
Company as promptly as possible, and in any event within 10 days after receipt
of a written request signed by the holders of record of at least 25% of the
outstanding shares of holders of such class of preferred stock.
Notwithstanding the provisions of this subparagraph 4A, no such special meeting
shall be held during the 90-day period preceding the date regularly fixed for
the annual meeting of stockholders.
Any director who shall have been elected by the holders of
such class of preferred stock shall hold office for a term expiring (subject to
the earlier termination of the arrearage in dividends) at the next annual
meeting of stockholders, and during such term may be removed at any time,
without cause, by, and only by, the affirmative votes of the holders of record
of a majority of the outstanding shares of preferred stock given at a special
meeting of such stockholders called for the purpose, except as otherwise
provided by Ohio law with respect to cumulative voting rights, and any vacancy
created by such removal may also be filled at such meeting. A meeting for the
removal of a director elected by the holders of Series I Preferred Stock and
the filling of the vacancy created thereby shall be called by the Secretary of
the Company within 10 days after receipt of a written request signed by the
holders of record of at least 25% of the outstanding shares of such class of
preferred stock.
Any vacancy caused by the death or resignation of a director
who shall have been elected by the holders of such class of preferred stock may
be filled only by the holders of such class at a meeting called for such
purpose. Such meeting shall be called by the Secretary of the Company at the
earliest practicable date after any such death or resignation and in any event
within 10 days after receipt of a written request signed by the holders of
record of at least 25% of the outstanding shares of the documents of
- 22 -
23
preferred stock.
At such meeting, the presence in person or by proxy of the
holders of a majority of the outstanding shares of such class of preferred
stock, as the case may be, shall be required to constitute a quorum; in the
absence of a quorum, a majority of the holders present in person or by proxy
shall have the power to adjourn the meeting from time to time without notice,
other than announcement at the meeting, until a quorum shall be present.
B. So long as any shares of Series I Preferred Stock are
outstanding, the Company shall not, without the written consent or the
affirmative vote at a meeting called for that purpose of holders of a majority
of the shares of Series I Preferred Stock then outstanding, voting separately
as a class, in any manner, whether by amendment to the Certificate of
Incorporation or By-Laws of the Company, by resolution, by merger (whether or
not the Company is a surviving corporation in such merger), by consolidation,
or otherwise:
(1) modify or adversely affect the relative rights,
preferences or limitations of the Series I Preferred Stock;
(2) authorize or issue, or increase the authorized or
outstanding amount of any class or series of stock ranking prior to the Series
I Preferred Stock in the payment of dividends or the preferential distribution
of assets.
Signed this 24th day of June, 1988.
/s/ Ronald F. Walker
---------------------------------
Ronald F. Walker, President
/s/ James E. Kennedy
--------------------------------
James E. Kennedy, Secretary
- 23 -
24
AMERICAN FINANCIAL CORPORATION
CERTIFICATE OF AMENDMENT
TO ARTICLES OF INCORPORATION
James E. Evans, Vice President, and James C. Kennedy, Secretary of
American Financial Corporation, an Ohio corporation (the "Corporation") do
hereby certify that a meeting of the shareholders was duly called and held on
the 8th day of December, 1994, at which meeting a quorum of the shareholders
was present in person or by proxy, and by the affirmative vote of the holders
of shares entitling them to exercise 100% of the voting power of the
Corporation, the following resolution was adopted to amend the Corporation's
Articles of Incorporation:
RESOLVED, that the Corporation's Articles of Incorporation be amended
to eliminate cumulative voting, specifically, to add a new Section
II.D to Article Fourth to read in its entirety as follows:
D. CUMULATIVE RIGHTS. No holder of any shares of the
Corporation, whether now in existence or hereafter
created, whether Common or Cumulative Preferred,
shall have any right to vote cumulatively in the
election of directors.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf
of the Corporation, have hereunto subscribed their names this 23rd day of
January, 1995.
/s/ James E. Evans
-----------------------------------
James E. Evans
Vice President
/s/ James C. Kennedy
---------------------------------
James C. Kennedy
Secretary
- 24 -
25
CERTIFICATE OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF AMERICAN FINANCIAL CORPORATION
James E. Evans, Vice President, and James C. Kennedy, Secretary of
AMERICAN FINANCIAL CORPORATION, an Ohio corporation (the "Company"), do hereby
certify that, by unanimous written consent of the shareholders of the Company
effective as of March 22, 1995, the shareholders of the Company adopted the
following resolutions:
RESOLVED, that Article Fourth of the Articles of Incorporation of the
Company be amended and restated in its entirety as follows:
FOURTH
------
I. AUTHORIZED CAPITAL. The Company is authorized to issue shares
of Capital Stock designated, described and limited as follows:
A. COMMON STOCK WITHOUT PAR VALUE - 53.5 MILLION SHARES
AUTHORIZED
B. PREFERRED STOCK
1. $1 Par, Nonvoting Cumulative Preferred Stock
-- 17 Million Shares Authorized, Consisting
of The Following Designated Series:
SERIES F - 15,000,000
SERIES G - 2,000,000
---------
TOTAL 17,000,000
==========
2. $10.50 Par, Nonvoting Cumulative Preferred
Stock -- 11.1 Million Shares Authorized,
Consisting of the Following Designated
Series:
Not Serially Designated - 8,375,000
SERIES E - 2,725,000
---------
TOTAL 11,100,000
==========
3. $.01 Par, Nonvoting cumulative Preferred
Stock -- 10 million authorized, which,
pursuant to a majority vote of all of its
members, the Board of Directors shall have
the right, with respect to any unissued or
treasury shares of $.01 Par, Nonvoting
Cumulative Preferred Stock and thereby to fix
or change:
- 25 -
26
a. the division of such shares into
series and the designation and
authorized number of shares of each
series, and
b. to provide for each such series:
(1) the dividend rates, dates of
payment of dividends, the
dates from which dividends
are cumulative;
(2) the amount payable in the
event of involuntary or
voluntary liquidation;
(3) redemption rights and terms
and prices;
(4) sinking fund provisions;
(5) conversion terms and
conditions for the
conversion of shares into
the same or a different
number of shares of any other
class or any series of the
same or any other class;
(6) voting rights in the event
of dividend arrearages;
(7) restrictions on the issuance
of shares of any class or
series; and
(8) such other designations,
preferences and relative
participating options or
other special rights and
qualifications, powers,
limitations or restrictions
thereon as may be determined
by the Board of Directors;
all of the foregoing to the
extent authorized from time
to time by the laws of Ohio
concerning stock
corporations;
All of the foregoing to the extent authorized from time to time by the
laws of Ohio concerning stock corporations.
II. General Provisions.
------------------
A. PRE-EMPTIVE RIGHTS. No holder of any shares of the
Company, whether Common or Cumulative Preferred,
shall have any pre-emptive rights to subscribe for or
to purchase any shares of the Company of any class
whether such shares or such class be now or
- 26 -
27
hereafter authorized or to purchase or subscribe for
securities convertible into or exchangeable for
shares of any class or to which shall be attached or
appertain any warrants or rights entitling the holder
thereof to purchase or subscribe for shares of any
class.
B. DIVIDEND RIGHTS. The holders of the Cumulative
Preferred Stock shall be entitled to receive
dividends out of any funds of the Company at the time
legally available for dividends when and as declared
by the Board of Directors at such rate per share per
annum as shall be fixed by the Board of Directors for
such series as hereinafter provided before any sum
shall be set apart or applied to the redemption or
purchase of or any dividends shall be declared or
paid upon or set apart for the Common Stock. In the
event of any liquidation, dissolution or winding up
of the Company, the holders of Cumulative Preferred
Stock shall be entitled to receive out of the assets
of the Company payment of an amount per share as
determined by the Board of Directors as a liquidation
price as hereinafter provided (including accrued
dividends, if any) before any distribution of assets
shall be made to the holders of the Common Stock.
C. VOTING RIGHTS. The voting power of the Company shall
reside in the Common Stock except as set forth
hereafter with respect to the Cumulative Preferred
Stock.
Each share of Voting Cumulative Preferred Stock shall
have the same voting rights as each share of Common
Stock of the Company.
The following provisions apply to the accrual and
termination of voting rights with respect to
Nonvoting Cumulative Preferred Stock.
1. Holders of $1 PAR NONVOTING CUMULATIVE
PREFERRED STOCK shall have no voting rights
except that if and whenever the Company shall
be in arrears on the declaration of payment
of dividends on the outstanding $1 Par
Nonvoting Cumulative Preferred Stock in an
amount equivalent to Six (6) full quarterly
dividends thereon, the holders of the $1 Par
Nonvoting cumulative Preferred Stock, voting
separately as a class, shall be entitled to
elect two Directors out of the then number of
Directors
- 27 -
28
of the Company, such rights shall continue
until full cumulative dividends for all past
dividend periods and the dividend for the
current dividend period on the $1 Par
Nonvoting Cumulative Preferred Stock shall
have been declared and paid or provided for.
2. Holders of the $10.50 PAR NONVOTING
CUMULATIVE PREFERRED STOCK shall have no
voting rights except that if and whenever the
Company shall be in arrears on the
declaration of payment of dividends on said
Stock as hereinafter provided, or be in
default of its obligation to redeem said
Stock in holders of all of the $10.50 Par
Shares, voting separately as a class, shall
be entitled to elect, at any one time, the
highest number of Directors of the Company
that results from applying the two following
formulae:
During any time in which the following number
of semi-annual installments of dividends
whether or not consecutive have not been paid
in whole or in part when due, and as long as
the same remain unpaid in whole or in part,
or in which the following number of
redemption payments, whether or not
consecutive, have not been made when due, and
as long as they are not made in whole or in
part:
Number of Number of Authorized
Semi-Annual Annual Number of
Dividend Redemption AFC
Installments Payments Directors
------------ ---------- -----------
2 1 Smallest number
constituting at
least 25%
4 2 Smallest number
constituting at
least 40%
6 3 Smallest Number
constituting a
majority
3. In the event voting rights accrue to the
holders of Nonvoting cumulative Preferred
Stock as described in (1) and/or (2) above,
then holders of the Voting Stock of the
Company, voting separately as a class, shall
- 28 -
29
be entitled to elect the remainder of the Board
of Directors.
D. CUMULATIVE RIGHTS. No holder of any shares of the
Corporation, whether now in existence or hereafter
created, whether Common or Cumulative Preferred,
shall have any right to vote cumulatively in the
election of directors.The voting power of the Company
shall reside in the Common Stock except as set forth
hereafter with respect to the Cumulative Preferred
Stock.
III. Preferred Stock Series Designations.
-----------------------------------
The Board of Directors shall have the right to adopt
amendments to the Articles with respect to any unissued or
treasury shares of Cumulative Preferred Stock and thereby to
fix or change: the division of such shares into series and
the designation and authorized number of shares of each
series; the dividend rate; the dates of payment of dividends;
the dates from which dividends are cumulative; liquidation
price; redemption rights and price; sinking fund requirement;
conversion rights; and restrictions on the issuance of shares
of any class or series.
The specific series of Cumulative Preferred Stock designated
are as follows:
SERIES E
--------
2,725,000 Shares of the $10.50 Par, Nonvoting Cumulative
Preferred Stock shall be designated as Series E (hereinafter
referred to as "Share" or "Shares") and shall be issuable upon
the following terms and conditions.:
A. DIVIDEND. Each of said Shares shall have an annual
dividend rate of $1 and no more. Said annual
dividend shall be payable in equal semi-annual
installments on the third day of June and December in
each year to holders of record as of the 15th day of
the preceding month, commencing June, 1976. The
holders of said Shares shall be entitled to receive
dividends out of any funds of the Company which at
the time are legally available for dividends before
any sum shall be set apart or applied to (i) the
redemption or purchase of or any dividends shall be
declared or paid upon or set apart for the Common
Stock, or (ii) the purchase of any Shares.
- 29 -
30
B. REDEMPTION. None of said Shares shall be redeemed
before 1986. In each of the years 1986 to 1995,
inclusive, the Company shall be obligated to redeem
on December 3, 10% of the total number of said Shares
originally issued at the par value of $10.50 for each
of said Shares so redeemed, plus any accrued but
unpaid dividends. This obligation is subject to
credits at the Company's option for the number of
said Shares purchased or redeemed by the Company
otherwise than pursuant to this requirement, and not
theretofore made the basis of any reduction in the
aforesaid obligation. In addition to the aforesaid
obligation to redeem said Shares, the Company may, at
its option, redeem an additional 10% of said Shares
originally issued in each of the years 1986 to 1995,
inclusive, at the par value of $10.50 per share, plus
any accrued but unpaid dividends, such optional right
of redemption being cumulative. Any Shares redeemed
pursuant to subparagraph B or which are made the
basis for any reduction in the obligation pursuant to
subparagraph B shall promptly be cancelled and shall
not thereafter be reissued. With respect to the
Shares to be redeemed in any year, the Company shall
select by lot those Shares which are to be redeemed.
C. LIQUIDATION. Upon any dissolution, liquidation or
winding up of the Company, the holders of each of
said shares shall be entitled to receive, before any
payment to holders of Common Shares, all accrued but
unpaid dividends, plus the par value of $10.50 per
share and no more. The consolidation or merger of
the Company, at any time, with another corporation,
or a sale of substantially all of the assets of the
Company, shall not be construed as a dissolution,
liquidation or winding up of the Company within the
meaning hereof.
D. VOTING. Notwithstanding anything to the contrary
contained in this Article Fourth, holders of said
Shares shall have no voting rights except that if and
whenever the Company shall be in arrears on the
declaration of payment of two or more semi-annual
dividends, or be in default of its obligation to
redeem said shares, as provided in subparagraph B
above, the holders of all of said Shares, voting
separately as a class, shall be entitled to elect two
directors of the Company.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares
shall have any preemptive rights to subscribe for
- 30 -
31
or to purchase any shares of the Company of any class
whether such shares or such class be now or hereafter
authorized or to purchase or subscribe for securities
convertible into or exchangeable for shares of any
class or to which shall be attached or appertain any
warrants or rights entitling the holder thereof to
purchase or subscribe for shares of any class.
F. AMENDMENT TO ARTICLES. The Company shall not, except
upon the affirmative vote of the holders of a
majority of the Shares outstanding at the time, amend
these Articles of Incorporation in any manner that
would result in said Shares being subordinate in
terms or preference as to payments of dividends or
payments on liquidation to any other Preferred Stock
of the Company.
G. GOVERNING TERMS. In the event that the expressed
terms of this amendment are inconsistent with other
provisions of Article Fourth with respect to the
terms of the Shares, then such terms as are expressed
in this amendment shall prevail.
SERIES F
--------
15,000,000 shares of the $1 Par, Nonvoting Cumulative
Preferred Stock shall be designated as Series F (hereinafter
referred to as "Share" or "Shares") and shall be issuable upon
the following terms and conditions:
A. DIVIDEND. Each of said Shares shall have an annual
dividend rate of $1.80 and no more. Said annual
dividend shall be payable in equal semi-annual
installments on the 3rd day of June and December in
each year to holders of record as of the 15th day of
the preceding month, commencing June 3, 1978. The
holders of said Shares shall be entitled to receive
dividends out of any funds of the Company which at
the time are legally available for dividends before
any sum shall be set apart or applied to (i) the
redemption or purchase of or any dividends shall be
declared or paid upon or set apart for the Common
Stock, or (ii) the purchase of any shares.
B. REDEMPTION. None of said Shares shall be redeemed
before 1987. In each of the years 1987 to 1996,
inclusive, the Company may redeem on December 3, up
to 10% of the total number of said Shares originally
issued at $20 for each of said Shares so
- 31 -
32
redeemed, plus any accrued but unpaid dividends. Any
Shares redeemed pursuant to Subparagraph B shall
promptly be cancelled and shall not thereafter be
reissued as Series F Nonvoting Cumulative Preferred
Stock, but shall be restored to the status of
authorized Nonvoting $1 Par, Cumulative Preferred
Stock. With respect to the Shares to be redeemed in
any year, the Company shall select by lot those
Shares which are to be redeemed.
C. LIQUIDATION. Upon any dissolution, liquidation or
winding up of the Company, the holders of each of
said Shares shall be entitled to receive, before any
payment to holders of Common Shares, all accrued but
unpaid dividends, plus a liquidation value of $20 per
share and no more. The consolidation or merger of
the Company, at any time, with another corporation,
or a sale of substantially all of the assets of the
Company, shall not be construed as a dissolution,
liquidation or winding up of the Company within the
meaning hereof.
D. AMENDMENT TO ARTICLES. The Company shall not, except
upon the affirmative vote of the holders of a
majority of the Shares outstanding at the time, amend
these Articles of Incorporation in any manner that
would result in said Shares being subordinate in
terms of preference as to payments of dividends or
payments on liquidation to any other Preferred Stock
of the Company.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares
shall have any pre-emptive rights to subscribe for or
to purchase any shares of the Company of any class
whether such shares or such class be now or hereafter
authorized or to purchase or subscribe for securities
convertible into or exchangeable for shares of any
class or to which shall be attached or appertain any
warrants or rights entitling the holder thereof to
purchase or subscribe for shares of any class.
F. GOVERNING TERMS. In the event that the expressed
terms of this amendment are inconsistent with other
provisions of Article Fourth with respect to the
terms of the Shares, then such terms as are expressed
in this amendment shall prevail.
- 32 -
33
SERIES G
--------
2,000,000 shares of the $1 Par, Nonvoting Cumulative Preferred
Stock shall be designated as Series G (hereinafter referred to
as "Share" or "Shares"), and shall be issuable upon the
following terms and conditions:
A. DIVIDEND. Each of the Shares shall have an annual
dividend rate of $1.05 and no more. Said annual
dividend shall be payable in equal semi-annual
installments on the third day of March and September
in each year to holders of record as of the 15th day
of the preceding month, commencing March 3, 1980.
The holder of Shares shall be entitled to receive
dividends out of any funds of the Company, which at
the time are legally available for dividends before
any sum shall be set apart or applied to (i) the
redemption or purchase of or any dividend shall be
declared or paid upon or set apart for the common
stock, or (ii) the purchase of any Shares.
B. REDEMPTION. None of the Shares shall be redeemed
before March 3, 1985. At any time or from time to
time after March 2, 1985, the Company may redeem all
or any part of the Shares at a redemption price of
$10.50 per share plus any accrued or declared but
unpaid dividends. Any shares redeemed pursuant to
this subparagraph B shall promptly be cancelled and
shall not be thereafter reissued as Series G
Nonvoting Cumulative Preferred Stock, but shall be
restored to the status of authorized $1 Par,
Non-voting Cumulative Preferred Stock. With respect
to the Shares to be redeemed, the Company shall
select by lot those shares which are to be redeemed.
C. LIQUIDATION. Upon any dissolution, liquidation or
winding up of the Company, the holders of the Shares
shall be entitled to receive, before any payment to
holders of common shares, all accrued or declared but
unpaid dividends, plus a liquidation price of $10.50
per Share and no more. The consolidation or merger
of the Company, at any time, with another
corporation, or a sale of substantially all of these
assets of the Company, shall not be construed as a
dissolution, liquidation or winding up of the Company
within the meaning hereof.
D. AMENDMENT TO ARTICLES. The Company shall not, except
upon the affirmative vote of the holders of
- 33 -
34
a majority of the Shares outstanding, at the time,
amend these Articles of Incorporation in any manner
that would result in the Shares being subordinate in
terms of preference as to payment of dividends or
payments on liquidation to any other preferred stock
of the Company.
E. PRE-EMPTIVE RIGHTS. No holder of any of the Shares
shall have any pre-emptive rights to subscribe for or
to purchase any shares of the Company or any class
whether such shares or such class be now or hereafter
authorized to purchase or subscribe for securities
convertible into or exercisable for shares of any
class or to which shall be attached or appertain any
warrants or rights entitled the holder thereof to
purchase or subscribe for any shares of any class.
F. GOVERNING TERMS. In the event that the express terms
of this amendment are inconsistent with other
provisions of Article Fourth with respect to the
terms of the Shares, then such terms as are expressed
in this amendment shall prevail.
RESOLVED, that a new Article Sixth be added to the Articles of
Incorporation to read as follows:
SIXTH
-----
The provisions of Ohio Revised Code Section 1701.831 or any
successor provisions relating to control share acquisitions
shall not be applicable to this Corporation.
- 34 -
35
IN WITNESS WHEREOF, the undersigned have hereunto set their respective
hands on behalf of the Company this 31st day of March, 1995.
AMERICAN FINANCIAL CORPORATION
By:/s/ James E. Evans
-------------------------------
James E. Evans, Vice President
By:/s/ James C. Kennedy
--------------------------------
James C. Kennedy, Secretary
- 35 -
36
CODE OF REGULATIONS
OF
AMERICAN FINANCIAL CORPORATION
(An Ohio Corporation)
As amended to April 20, 1988
CODE OF REGULATIONS
OF
AMERICAN FINANCIAL CORPORATION
ARTICLE I
MEETING OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the
shareholders of AMERICAN FINANCIAL CORPORATION (hereinafter called the Company)
shall be held at the office of the Company in the City of Cincinnati, in the
State of Ohio, or at such other places, either within or without the State of
Ohio, as may from time to time be fixed by the Board of Directors of the
Company (hereinafter called the Board) or as specified in the notice calling
any such meeting.
SECTION 2. ANNUAL MEETING. The regular Annual Meeting of the
Shareholders having voting power shall be held at the hour of 2:00 p.m. on the
fourth Tuesday in May of each year, or such other day or time in May as fixed
by the Board of Directors. At such Meeting the Shareholders shall elect
Directors and transact such other business as may properly be brought before
the Meeting. If the election of Directors shall not be held on the date
designated herein for the Annual Meeting, the Board shall cause the elections
to be held as soon as practicable thereafter. At any such Meeting the
Shareholders may elect Directors in the manner hereinafter provided and
transact other business with the same force and effect as if at any Annual
Meeting duly called and held.
SECTION 3. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose or purposes may be called by the President, any
Vice President, the Board of Directors, or at the request of the holders of not
less than one-tenth (1/10) of all of the shares entitled to vote at the
meeting. Such request shall state the purpose or purposes of the proposed
meeting.
SECTION 4. NOTICE OF MEETING. Notices of meetings of
shareholders shall be given as required by the statutes of the State of Ohio.
Notice need not be given to any shareholder who shall in writing waive notice
of any meeting, whether before, at or after the meeting. Notice of any
adjourned meeting need not be given, except where expressly required by law.
SECTION 5. QUORUM AND ADJOURNMENT. At any meeting of
shareholders, the holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of any business, except as otherwise
provided by law
37
or by the Articles of Incorporation. In the absence of a
quorum at any such meeting or any adjournment thereof, a majority in interest
of those shareholders present in person or represented by proxy and entitled to
vote thereat, or, in the absence therefrom of all the shareholders, any officer
entitled to preside at, or to act as secretary of, such meeting, may adjourn
such meeting from time to time until a quorum shall be present, provided that
no one adjournment shall be for a period in excess of 60 days. At any such
adjourned meeting in which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
called.
SECTION 6. VOTING. At each meeting of shareholders, each
shareholder of the Company shall be entitled to one vote in person or by proxy
appointed by an instrument in writing subscribed by such shareholder or by his
duly authorized attorney-in-fact and bearing a date not more than eleven months
prior to such meeting, unless said instrument expressly provides for a longer
period, for each share of the capital stock of the Company held by him and
registered in his name on the books of the Company at the date fixed as the
record date for the determination of shareholders entitled to notice of and to
vote at such meeting, or as the date for closing the stock transfer books of
the Company, or if no such dates shall have been so fixed, at such other record
date as may be prescribed by law. At all meetings of shareholders at which a
quorum is present all matters shall be decided by a vote of the majority in
interest of the shares of stock present in person or represented by proxy and
entitled to vote thereat, except as otherwise provided by law, the Articles of
Incorporation or this Code of Regulations. Unless required by law, or unless
demanded by a shareholder present in person or represented by proxy and
entitled to vote at any meeting of shareholder, or unless directed by the
chairman of the meeting, the vote on any matter need not be by ballot. Upon a
demand by any such shareholder for a vote by ballot on any matter, or at the
direction of such chairman that a vote by ballot be taken on any matter, such
vote shall be taken by ballot.
SECTION 7. CONDUCT OF MEETINGS. Each meeting of shareholders
shall be presided over by the President, or if the President shall not be
present, by the Vice President. In the absence of both of these officers, a
chairman shall be chosen by a vote of a majority in voting interest of those
shareholders present in person or represented by proxy. The Secretary of the
Company, if present, shall act as Secretary of each meeting of shareholders, or
if he shall not be present, the Assistant Secretary shall so act. If neither
the Secretary nor the Assistant Secretary shall be present, a secretary shall
be appointed by the chairman of such meeting.
ARTICLE II
BOARD OF DIRECTORS
38
SECTION 1. POWERS; NUMBER; TERM; ELECTION. The property,
affairs and business of the Company shall be managed by the Board of Directors,
and in addition to the powers expressly conferred upon it by this Code of
Regulations, the Board may exercise all such other powers as are not by statute
or by the Articles of Incorporation or by this Code of Regulations required to
be exercised by the shareholders. Directors need not be residents of this
state or shareholders of the Company. The Board shall consist of the number of
Directors as shall be fixed by the Shareholders which shall not be less than
three nor more than fifteen.
Each shareholder entitled to vote shall have the right to nominate
persons to be voted upon. A shareholder may cast all of his votes for one
Director or may divide them among several Directors in such manner as he
desires. At all meetings of shareholders for the election of Directors at
which a quorum shall be present, the persons receiving the highest number of
votes in consecutive order shall be elected Directors.
The term of office of each Director shall be from the time of his
election and qualification until his successor shall have been duly elected and
shall qualify, or until his death, or until he shall resign, or until he shall
have been removed in the manner hereinafter provided. The entire membership or
the Board of Directors shall be elected at each Annual Meeting of Shareholders.
SECTION 2. ORGANIZATION. The Board may, in its own
discretion, elect a Chairman of the Board for such term and with such duties as
the Board may by resolution prescribe. If there be a Chairman of the Board, he
shall preside at each meeting of the Board. If there be no Chairman of the
Board or in his absence, those members who are present shall by majority vote
designate one of their number to preside. The Secretary, or in his absence the
Assistant Secretary, or in the absence of both the Secretary and the Assistant
Secretary, any person appointed by the Chairman of the meeting, shall act as
Secretary of the meeting.
SECTION 3. RESIGNATIONS. Any Director of the Company may
resign at any time by giving written notice to the Board of Directors or to the
President or to the Secretary of the Company. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 4. REMOVAL. At a meeting called expressly for that
purpose, the entire Board or any lesser number may be removed, with or without
cause, by a vote of the shareholders. The entire Board may be removed in a
single ballot if the holders of a
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39
majority of the shares entitled to vote, vote for such removal. A new Board
will then be elected. One or more of the members of the Board which has just
been removed, if the shareholders so desire, may be re-elected to membership on
the new Board. If the removal of less than the entire Board is in question,
then the removal of each director whose continuance in office is under dispute
shall be voted upon separately, and his removal shall be effected only if the
fraction of votes cast against his removal is not more than the fraction
computed by dividing the number of Directors fixed by the Code of Regulations
into one.
SECTION 5. VACANCIES. Any vacancy occurring in the Board by
reason of death, resignation, disqualification or any other cause, may be
filled by the affirmative vote of a majority of the remaining Directors even
though a quorum may not exist. A Director elected to fill a vacancy shall hold
office until his successor shall have been elected and shall qualify. Any
directorship to be filled by reason of an increase in the number of Directors
shall be filled by an election at an annual meeting of shareholders or at a
special meeting of shareholders called for that purpose. At any such meeting,
the entire Board shall stand for election, in order that the privilege of
cumulative voting shall not be impaired.
SECTION 6. PLACE OF MEETINGS. The Board may hold its
meetings at such place or places, either within or without the State of Ohio,
as it may from time to time by resolution determine or as shall be specified or
fixed in the respective notices or waivers of notice thereof.
SECTION 7. FIRST MEETING; REGULAR MEETINGS. After each
election of Directors and after the meeting of shareholders at which such
election shall be held, and as soon thereafter as practical, the newly elected
Board shall meet for the purpose of organization, the election of officers of
the Company and the transaction of other business. Notice of such meeting need
not be given if held on the same day as the shareholders' meeting at which the
Directors were elected. If not held on the day of the meeting of shareholders
at which the Directors were elected, notice of the first meeting of Directors
shall be given in accordance with the provisions of Section 8 of this Article
II below. Regular meetings of the Board may be held at such time and place as
may from time to time be specified in a resolution adopted by the Board and at
the time in effect and, unless otherwise required by such resolution or by law,
notice of any such regular meeting need not be given.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board
shall be held whenever called by the Chairman of the Board if such there be,
the President, or by the Secretary at the request of any two Directors. Notice
of each such meeting shall be mailed to each Director, addressed to him at his
residence or
5
40
usual place of business, at least 3 days before the day on which the meeting is
to be held, or shall be sent to him at such place by telegraph, cable or radio,
or be delivered personally or by telephone, at least 2 days before the day on
which the meeting is to be held. Every such notice shall state the time and
place, but need not state the purpose, of the meeting. Notice of any such
meeting need not be given to any Director, however, if waived by him in writing
or by telegraph, cable or radio, whether before, at or after such meeting is
held, or if he shall attend such meeting in person, or if he shall sign the
minutes thereof, and any meeting of the Board, whether regular or special,
shall be a legal meeting without any notice thereof having been given if all of
the Directors shall be present thereat or shall sign the minutes thereof.
SECTION 9. QUORUM AND MANNER OF ACTING. A majority of the
number of Directors fixed by this Code of Regulations at the time of any
regular or special meeting of the Board of Directors shall constitute a quorum
for the transaction of business at such meeting, and the act of a majority of
the Directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum, a majority of the
Directors present may, without notice other than announcement at the meeting,
adjourn the meeting from time to time until a quorum be had.
SECTION 10. COMPENSATION. The Board may by resolution
provide that the Company shall allow a fixed sum and reimbursement of expenses
for attendance at meetings of the Board and at meetings of the Executive
Committee. Nothing herein contained shall preclude any Director from serving
the Company in any other capacity and receiving compensation therefor.
SECTION 11. INDEMNIFICATION OF DIRECTORS. Each Director and
officer or former Director or officer of the Company, or any person who may
have served at its request as a Director or officer of another corporation in
which this Company owns shares of stock or of which it is a creditor, and the
personal representatives of all such persons, shall be indemnified by the
Company against all expenses and liabilities, including attorneys' fees,
reasonably incurred by or imposed upon him in connection with any claim,
demand, action or proceeding to which he may be made a party, or in which he
may become involved, or in connection with any settlement thereof, by reason of
his being or having been such a Director or officer of such Company, except in
cases where he shall be finally adjudged in such action or proceeding to be
liable for gross negligence or willful misconduct in the performance of his
duties as such Director or officer. The right of indemnification herein
provided shall be in addition to, and not exclusive of, all other rights to
which such Director or officer may be entitled by law, vote of the
shareholders, or otherwise. It is provided, however, that such
6
41
Director or officer shall not be so indemnified in the event of a settlement of
any such action, suit or proceeding unless (1) such settlement shall be
approved by the court having jurisdiction of such action, suit or proceeding,
or (2) such settlement shall have been made upon the written opinion of
independent legal counsel, selected by or in a manner determined by the Board
of Director; to the effect that there is no reasonable ground of liability for
gross negligence or willful misconduct on the part of such Director or officer.
ARTICLE III
EXECUTIVE COMMITTEE
SECTION 1. DESIGNATION. The Board may, by resolution
adopted by a majority of the number of Directors fixed by this Code of
Regulations, designate three or more members of the Board to constitute an
Executive Committee of the Board, and may designate a Chairman of the Executive
Committee who, if present, shall preside at meetings of the Executive
Committee. In the event of the absence of the designated Chairman at any
meeting of the Executive Committee or in the event the Board has not designated
a Chairman, the members thereof present shall designate one of their number to
preside at such meeting. The Secretary of the Company, or such other person as
the Executive Committee shall from time to time determine shall act as
Secretary of the Executive Committee. The Board, in like manner, shall fill
vacancies in the Executive Committee. Each member of the Executive Committee
shall continue to be a member thereof only during the pleasure of a majority of
the number of directors fixed by this Code of Regulations.
SECTION 2. POWERS. Except as otherwise expressly provided
in the Certificate of Incorporation or in this Code of Regulations or by law,
at all times when the Board is not in session, the Executive Committee shall
have and may exercise all the powers of the Board in the direction and
management of the property, business and affairs of the Company in such manner
as the Executive Committee shall deem for the best interest of the Company, in
all cases in which specific directions shall not have been given by the Board.
SECTION 3. MEETINGS. The Executive Committee shall hold
meetings at such times and at such places as may be provided by resolution of
the Executive Committee. Special meetings of the Executive Committee may be
called at any time by the Chairman or by any two members thereof. Notice of
each such meeting shall be mailed to each member of the Executive Committee,
addressed to him at his residence or usual place of business, so as to be
received not less than 24 hours before the meeting, or shall be sent to him at
such place by telegraph, cable or radio, or be
7
42
delivered personally or by telephone not less than 24 hours before such
meeting. Every such notice shall state the time and place, but need not state
the purpose of the meeting. Notice of any such meeting need not be given to
any member, however, if waived by him in writing or by telegraph, cable or
radio, whether before, at or after such meeting is held, or if he shall attend
such meeting in person, or if he shall sign the minutes thereof, and any
meeting of the Executive Committee, whether regular or special, shall be legal
meeting without any notice thereof having been given if all of the member of
the Executive Committee shall be present thereat and shall sign the minutes
thereof.
SECTION 4. QUORUM PROCEDURE. At every meeting of the
Executive Committee, a majority of the members of the Executive Committee in
office at the time of such meeting shall constitute a quorum for the
transaction of business. Any act of a majority of the members present at a
meeting in which a quorum shall be present shall be the act of the Executive
Committee. The Executive Committee shall keep a record of its proceedings and
report them to the Board at the next meeting thereof after such proceeding
shall have been taken.
ARTICLE IV
AUDIT COMMITTEE
SECTION 1. DESIGNATION. The Company may, by resolution
adopted by its Directors designate three or more members of the Board of
Directors to constitute an Audit Committee and may designate a Chairman of the
Audit Committee who, if present, shall preside at meetings of the Audit
Committee. Each member of the Audit Committee shall serve at the pleasure of
the Board. The Board shall fill vacancies in the Audit Committee.
SECTION 2. DUTIES, POWERS AND FUNCTIONS. The Audit
Committee may undertake the following duties, powers and functions:
(a) To review the financial and accounting policies, procedures and
controls of the Company and its subsidiaries (hereinafter collectively referred
to as the "Company" in this Article unless otherwise stated) and recommend, as
the Audit Committee deems necessary or appropriate, changes and improvements
thereto designed to, among other things:
(i) assure accountability for the assets of the Company and
appropriate controls regarding the use of such assets by any officer or
Director of the Company, or any relative of any of them, and
(ii) provide appropriate controls for direct or indirect loans,
extensions of credit, contracts, commitments,
8
43
arrangements or understandings between the Company and any officer or Director
of the Company, or any relative of any of them.
For the purposes of this Article, the term "relative" shall mean any spouse,
parent, child, brother, sister, or the spouse of any such person.
(b) To review annual and quarterly financial statements issued or
filed by the Company with the Securities and Exchange Commission.
(c) To meet with the Company's independent auditors from time to
time and review the nature, scope and findings of the audit of the Company's
financial statements.
(d) To make recommendations to the Board of the Company (parent
company only) with respect to any disagreement or controversy between the
independent auditors and the management of the company which has been brought
to the Audit Committee's attention.
(e) To recommend to the Board of the Company (parent company only)
the selection, retention or discharge of the Company's independent auditors.
(f) To meet with the internal auditors of the Company from time to
time and review the findings of the internal auditors. The internal auditors
may submit a written statement to the Audit Committee each calendar quarter
regarding the work performed by the internal auditors during the relevant
period.
(g) To initially approve or disapprove in writing, and thereafter
review any loan or extension of credit in excess of $50,000, except mortgage
loans extended for the purpose of acquiring real property and secured by such
property, and, as the Audit Committee in its discretion deems necessary or
appropriate, any other business transaction, commitment or arrangement, entered
into by the Company directly or indirectly with, to or for the benefit of any
officer or Director of the Company (parent company only), or any relative of
any of them. In connection with its review of such loans and extension of
credit, the Audit Committee shall consider whether any such loans or extension
of credit are adequately documented, and are on similar terms, considering
interest rates, collateral, repayment schedule, amount, purpose of loan or
extension of credit, and current financial statements and condition of the
borrower, as similar transactions with unrelated parties. The Audit Committee
may make a written report of its findings to the board of the Company (parent
company only), and may recommend to such Board whatever action, if any, it
considers necessary or appropriate.
9
44
(h) To request subsidiaries of the Company to report in writing to
the Audit Committee all terms (including, but not limited to, interest rates,
collateral, repayment schedule, amount, purpose of loan or extension of credit,
financial condition of the borrower, endorsements, guarantees, and financial
condition of endorsers and guarantors) of all loans and other extensions of
credit in excess of $100,000, except mortgage loans extended for the purpose of
acquiring real property and secured by such property, and, as the Audit
Committee, in its discretion deems necessary or appropriate, any other business
transaction, commitment or arrangement between any subsidiary of the Company
and any officer or Director of such subsidiary, or any relative of any of them,
to determine whether, in the discretion of the Audit Committee, any further
review or examination of any such matters shall be conducted. In connection
with its review of such loans and other extensions of credit, the Audit
Committee shall consider whether any such loans or extensions of credit are
adequately documented, and are on similar terms, considering interest rate,
collateral, repayment schedule, amount, purpose of loan or extension of credit,
and financial statement and condition of the borrower, as similar transactions
with unrelated parties. The Audit Committee may make a written report of its
findings to the Board of the Company (parent company only) and may recommend to
the Board whatever action, if any, it considers necessary or appropriate.
SECTION 3. MEETINGS. The Audit Committee may hold meetings
at such times, upon such notice and at such places as it may determine. Notice
of any meeting need not be given to any member, if waived by him in writing or
by telegraph, cable or radio, whether before, at or after such meeting is held,
or if he shall attend such meeting in person, or if he shall sign the minutes
thereof.
SECTION 4. QUORUM PROCEDURE. At every meeting of the Audit
Committee, a majority of the members of the Committee in office at the time of
such meeting shall constitute a quorum for the transaction business. Any act
of a majority of the members present at a meeting in which a quorum shall be
present shall be the act of the Audit Committee.
ARTICLE V
OFFICERS
SECTION 1. NUMBER. The officers of the Company shall be a
President, one or more Vice Presidents, a Secretary, a Treasurer and such other
officers as may be appointed in accordance with the provisions of Section 3 of
this Article IV. One person may hold the office and perform the duties of any
two of the said officers except those of President and Vice President,
President and Secretary, Secretary and Assistant Secretary, and Treasurer
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45
and Assistant Treasurer.
SECTION 2. ELECTION; TERM OF OFFICE; QUALIFICATION. The
officers of the Company shall be elected annually by the Board. Each officer,
except such officers as may be appointed in accordance with the provisions of
Section 3 of this Article IV, shall continue in office until his successor
shall have been duly elected and qualified in his stead, or until his death, or
until he shall have resigned and his resignation shall have become effective,
or until he shall have been removed in the manner hereinafter provided.
SECTION 3. SUBORDINATE OFFICERS. The Board may appoint
such other officers, committees and agents as it may deem necessary, including
one or more Assistant Treasurers and one or more Assistant Secretaries, each of
whom shall hold office for such period, have such authority and perform such
duties as are provided in this Code of Regulations or as the Board may from
time to time determine. The Board my delegate to any officer or committee the
power to appoint, and to prescribe the authority and duties of, any such
subordinate officers, committees or agents.
SECTION 4. REMOVAL. Any officer may be removed by the
Board or by the Executive Committee at any regular or special meeting thereof,
with or without cause, whenever in its judgment the best interests of the
Company will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed.
SECTION 5. RESIGNATIONS. Any officer may resign at any
time by giving written notice to the Board or to the President or to the
Secretary of the Company. Such resignation shall take effect at the date of
the receipt of such notice or at any later time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6. VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be
filled for the unexpired portion of the term in the manner prescribed in this
Code of Regulations for regular appointments or elections to such office.
SECTION 7. SALARIES. The salaries of the officers shall be
fixed from time to time by the Board, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
Company.
SECTION 8. THE CHIEF EXECUTIVE OFFICER. The Chief
Executive Officer shall be the primary executive officer of the Company. He
shall have plenary power over the business and
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46
activities of the Company, subject to control of the Board.
SECTION 9. THE PRESIDENT. The President shall supervise
the business of the Company and its several officers, subject to the control of
the Board. In general, he shall perform all duties incident to the office of
President and such other duties as may from time to time be assigned to him by
the Board.
SECTION 10. THE CHIEF OPERATING OFFICER. The Chief
Operating Officer shall participate in the supervision of the business and
activities of the Company and participate in supervision of its several
officers, subject to control of the Board. The Chief Operating Officer shall
perform such other duties, consistent with his office, as from time to time may
be assigned to him by the Board, the Chief Executive Officer or the President.
SECTION 11. THE VICE PRESIDENT. At the request of the
President or in case of the absence or inability to act of the President, one
of the Vice Presidents who shall be designated for that purpose by the Board
shall perform the duties of the President and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President. Each
Vice President shall have such powers and perform such other duties as may from
time to time be assigned to him by the Board or by the President.
SECTION 12. THE SECRETARY. The Secretary shall:
(a) Keep the minutes of the meetings of the shareholders and of the
Board in books provided for that purpose.
(b) See that all notices are duly given in accordance with the
provisions of this Code of Regulations and as required by law.
(c) Be custodian of the records and of the seal of the Company and
see that the seal is affixed to all documents, the execution of which on behalf
of the Company under its seal is duly authorized in accordance with the
provisions of this Code of Regulations.
(d) Cause to be kept a register of the post office address of each
shareholder, and cause to be made all proper changes in such register.
(e) In general, perform all duties incident to the office of
Secretary and such other duties as may from time to time be assigned to him by
the Board or by the President.
SECTION 13. THE ASSISTANT SECRETARY. At the request of the
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Secretary, or in his absence or disability, an Assistant Secretary shall
perform all of the duties of the Secretary, and when so acting he shall have
all of the powers of, and be subject to all of the restrictions upon, the
Secretary. He shall perform such other duties as may from time to time be
assigned to him by the Board, by the President or by the Secretary.
SECTION 14. THE TREASURER. The Treasurer shall give bond
for the faithful discharge of his duties in such sum and with such sureties as
the Board shall require. He shall:
(a) Have the charge and custody of, and be responsible for, all
funds and securities of the Company, and deposit all such funds in the name of
the Company in such banks, trust companies or other depositaries as shall be
selected in accordance with the provisions of this Code of Regulations.
(b) At all reasonable times exhibit to the Board his books of
account and records, and cause to be exhibited the books of account and records
of any corporation a majority of whose stock is owned by this Company, where
such books and records are kept.
(c) Render a statement of the condition of finances of the Company
at all regular meetings of the Board and a full financial report at the annual
meeting of the shareholders, if called upon to do so.
(d) Receive, and give receipt for, moneys due and payable to the Company
from any source whatsoever.
(e) In general, perform all of the duties incident to the office of
Treasurer and such other duties as may from time to time be assigned to him by
the Board or by the President.
SECTION 15. THE ASSISTANT TREASURER. At the request of the
Treasurer, or in his absence or disability, an Assistant Treasurer shall
perform all of the duties of the Treasurer, and, when so acting, he shall have
all of the powers of, and be subject to all of the restrictions upon, the
Treasurer. He shall perform such other duties as may from time to time be
assigned to him by the Board, by the President or by the Treasurer, and shall
have a bond for the faithful discharge of his duties, in such sum and with such
sureties as the Board shall require.
ARTICLE VI
CONTRACTS; LOANS; CHECKS; DRAFTS; DEPOSITS; PROXIES
SECTION 1. EXECUTION OF CONTRACTS. Except as otherwise
provided by law or this Code of Regulations, the Board may authorized any
officer or agent of the Company to enter into any
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contract or execute and deliver any instrument in the name and on behalf of the
Company, and such authority may be general or confined to specific instances;
and, unless so authorized by the Board or this Code of Regulations, no officer,
agent or employee shall have any power or authority to bind the Company by any
contract or engagement, to pledge its credit, or to render it pecuniarily
liable for any purpose or to any amount except as may be necessary to enable
the Company to carry on its business in the ordinary course thereof.
No contract or other transaction between the Company and one or more of
its Directors or officers shall be invalid or otherwise affected by the fact
that any Director or officer has a pecuniary or other interest in such contract
or transaction; and any such Director may be counted in determining the
existence of a quorum at any meeting of the Board of Directors for the purpose
of authorizing or ratifying such contract or transaction with like force and
effect as if he were not so interested. No contract or other transaction
between this corporation and any other corporation, firm or person shall be
affected by the fact that any Director or officer of this corporation is a
Director or officer of such other corporation or is otherwise connected with
such other corporation, firm or person or is otherwise interested in such
contract or transaction; and any such Director may be counted in determining a
quorum and may vote to authorize or ratify such contract or transaction with
like force and effect as if he were not so interested.
SECTION 2. LOANS. No loans shall be contracted on behalf
of the Company and no negotiable paper shall be issued in its name unless
authorized by the Board. When so authorized, any officer or agent of the
Company may effect loans and advances at any time for the Company from any
bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances may make, execute and delivery
promissory notes or other evidences of indebtedness of the Company and, when
authorized as aforesaid, as security for the payment of any and all loans,
advances, indebtedness and liabilities of the Company may mortgage, pledge,
hypothecate or transfer any real or personal property at any time held by the
Company and to that end execute instruments of mortgage or pledge or otherwise
transfer said property. Such authority may be general or confined to specific
instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or
other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Company shall be signed by such person or persons and
in such manner as shall from time to time be determined by the Board.
SECTION 4. DEPOSITS. All funds of the Company shall be
deposited to the credit of the Company under such conditions and
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in such banks, trust companies or other depositaries as the Board may designate
or as may be designated by any officer or officers or agent or agents of the
Company to whom such power may from time to time be delegated by the Board, and
for the purposes of such deposit any person or persons to whom such power is so
delegated may endorse, assign and deliver checks, drafts and other orders for
the payment of moneys which are payable to the order of the Company.
SECTION 5. PROXIES. Unless otherwise provided by the
Board, the President may from time to time appoint any attorney or attorneys or
agent or agents of the Company in the name and on behalf of the Company to cast
the votes which the Company may be entitled to cast as a shareholder or
otherwise in any other corporation any of whose stock or other securities are
held by the Company at meetings of the holders of the stock or other securities
of such other corporation, or to consent in writing to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause
to be executed in the name and on behalf of the Company and under its seal such
written proxies or other instruments as he may deem necessary or proper in the
premises.
ARTICLE VII
SHARES; EXAMINATION OF BOOKS
SECTION 1. CERTIFICATES OF STOCK. Every shareholder shall
be entitled to a certificate or certificates in such form as shall be approved
by the Board. Such certificates shall be numbered in the order of their issue
and shall be signed by the President or a Vice President and by the Secretary
or an Assistant Secretary. The signatures of the President or Vice President
and the Secretary or Assistant Secretary upon a certificate may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a
registrar, other than the Company itself or an employee of the Company. In
case any such officer who shall have signed, or whose facsimile signature shall
have been placed upon, such certificate shall have ceased to be such officer
before such certificates is issued, it may be issued by the Company with the
same force and effect as if such officer had not ceased to be such at the date
of its issue. Every certificate exchanged or returned to the Company shall be
marked "Cancelled" with the date of cancellation.
SECTION 2. TRANSFER OF STOCK. Except as otherwise provided
by law or as hereinafter provided in the case of the loss, destruction or
mutilation of certificates, no transfer of stock shall be entered upon the
stock books of the Company until the previous certificate, if any, given for
the same shall have been surrendered and cancelled. A person in whose name
shares of
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stock stand on the books of the Company shall be deemed the owner thereof as
regards the Company for all purposes. The Board may also make such additional
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of certificates for shares of the capital stock of the Company
as is permitted by law.
SECTION 3. LOST, DESTROYED OR MUTILATED CERTIFICATES. The
holder of any stock of the Company shall immediately notify the Company of any
loss, destruction or mutilation of the certificate therefor, and the Board may,
in its discretion, cause a new certificate or certificates to be issued to him
upon the surrender of the mutilated certificate or, in case of the loss or
destruction of the certificate, upon satisfactory proof of such loss or
destruction, and if the Board shall so determine, upon the deposit of a bond in
such form and amount (not exceeding double the value of the stock represented
by such certificate) and with such surety or sureties as the Board may require.
ARTICLE VIII
DIVIDENDS
Subject to the provisions of the Articles of Incorporation and the laws
of the State of Ohio, the Board may declare dividends whenever, and in such
amounts as, in its opinion, the condition of the affairs of the Company shall
render advisable. The Board, in its discretion, may use and apply any of the
surplus or net profits as a reserve fund to meet contingencies or for the
purpose of maintaining or increasing the property or business of the Company or
for any other purposes which it may think conducive to the best interest of the
Company.
ARTICLE IX
SEAL
The Board shall provide a seal for the Company which shall be in such form as
the Board shall provide.
ARTICLE X
AMENDMENTS
Except as otherwise provided by the Articles of Incorporation or the
laws of the State of Ohio, the Board shall have power to make, alter, amend or
repeal this Code of Regulations by a vote of the majority of the Directors then
in office at any regular
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meeting or at any special meeting thereof, if notice of intention to make,
alter, amend or repeal such Code of Regulations, in whole or in part, or to
adopt a new Code of Regulations, shall have been given in the notice calling
such meeting, provided, however, that notice is not required if all members of
the Board unanimously vote for such change.
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