1
EXHIBIT NO. 3
CERTIFICATE OF ADOPTION
OF
1995 AMENDED
ARTICLES OF INCORPORATION
OF
FABRI-CENTERS OF AMERICA, INC.
Alan Rosskamm, Chairman of the Board, and Betty Rosskamm,
Secretary of Fabri-Centers of America, Inc., an Ohio corporation (the
"Company"), hereby certify that the following 1995 Amended Articles of
Incorporation (the "Amended Articles"), which only consolidates the current
articles with all previously adopted amendments and eliminates from the Amended
Articles all references to the change of the Common Shares to Class A Common
Shares and Class B Common Shares, was unanimously adopted at a meeting of the
Board of Directors of the Company duly called and held on August 2, 1995 at
which a quorum was present:
"RESOLVED, that, pursuant to Sections
1701.70(B)(4) and 1701.72(B) of the General Corporation
Law of the State of Ohio, the 1995 Amended Articles of
Incorporation of Company (the "Amended Articles"), in the
form presented to this Board of Directors, which
consolidates the Company's 1992 Amended Articles of
Incorporation with the Recapitalization Amendment and
eliminates references to the change in the existing Common
Shares, hereby is approved and adopted, and the Chairman
of the Board, President or any Vice President and the
Secretary or any Assistant Secretary of the Company, and
each of them, hereby are authorized to execute, for and on
behalf of the Company, the Amended Articles and to cause
the same to be filed with the Secretary of State of the
State of Ohio following the filing of the Recapitalization
Amendment."
The Amended Articles were adopted by the Board of Directors pursuant to
Sections 1701.70(B)(4) and 1701.72(B) of the Ohio General Corporation Law. A
copy of the Amended Articles are attached to this Certificate as Exhibit A.
---------
IN WITNESS WHEREOF, Alan Rosskamm, Chairman of the Board, and
Betty Rosskamm, Secretary, of the Company have signed their names on this 2nd
day of August, 1995.
/s/ Alan Rosskamm
--------------------------
Alan Rosskamm, Chairman
of the Board
/s/ Betty Rosskamm
-------------------------
Betty Rosskamm, Secretary
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EXHIBIT A
1995
AMENDED ARTICLES OF INCORPORATION
OF
FABRI-CENTERS OF AMERICA, INC.
FIRST: The name of the Corporation is FABRI-CENTERS OF
AMERICA, INC.
SECOND: The place in the State of Ohio where its
principal office is located is the Village of Hudson, County of Summit.
THIRD: The purposes for which, and for any of which, it
is formed are:
a) To carry on the business of dealing in fabrics and in connection
therewith to buy and sell, at wholesale or retail, import, export,
manufacture, weave, produce, repair, adapt, prepare, use and otherwise
deal in, rubber, cotton, wool, silk, flax, glass, synthetic and all
other fibrous materials, goods and fabrics, and in goods and fabrics
into which rubber, cotton, wool, silk, flax, glass, synthetic or any
fibrous material enters as a component part.
b) To develop, manufacture, repair, treat, finish, buy, sell, and
generally deal in, in every manner, materials, articles and products
of every kind and description, and to do all things necessary or
incidental thereto, including owning, holding and dealing in, in every
manner, all real and personal property necessary or incidental to the
foregoing purposes.
c) In general to carry on any other lawful business whatsoever in
connection with the business of the Corporation or which is
calculated, directly or indirectly, to promote the interests of the
Corporation or to enhance the value of its properties, and to have and
exercise all rights, powers and privileges which are now or may
hereafter be conferred upon corporations by the laws of Ohio.
The Corporation reserves the right at any time and from
time to time to change substantially its purposes in any manner now or
hereafter permitted by statute.
FOURTH: The authorized number of shares of the
Corporation is 155,000,000, consisting of 5,000,000 shares of Serial Preferred
Stock without par value ("Serial Preferred Shares"), 75,000,000 Class A Common
Shares without par value ("Class A Shares") and 75,000,000 Class B Common
Shares without par value ("Class B Shares" and together with the Class A
Shares, the "Common Stock"). The shares of each class shall have the express
terms set forth in this Article Fourth.
DIVISION A: Express Terms of Serial Preferred Shares
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1. The Serial Preferred Shares may be issued from time to
time in one or more series. Each Serial Preferred Share of any one series
shall be identical with each other share of the same series in all respects,
except as to the date from which dividends thereon shall be cumulative by
reason of different dates of issuance; and all Serial Preferred Shares of all
series shall rank equally and shall be identical, except in respect of the
terms that may be fixed by the Board of Directors as hereinafter provided.
Subject to the provisions of Sections 2 through 7 of this Division A, which
provisions shall apply to all Serial Preferred Shares of all series, the Board
of Directors is hereby authorized to cause Serial Preferred Shares to be issued
in one or more series and with respect to each such series, prior to the
issuance thereof, to fix:
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(a) The designation of the series, which may be by
distinguishing number, letter or title.
(b) The number of shares of the series, which number the
Board of Directors may increase or decrease, except where otherwise provided in
the creation of the series.
(c) The dividend rate of the series.
(d) The dates on which dividends, if declared, shall be
payable and the dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any,
for shares of the series.
(f) The terms and amount of any sinking fund provided for
the purchase or redemption of shares of the series.
(g) Whether the shares of the series shall be convertible
into Class A Shares and/or Class B Shares and, if so, the conversion rate or
rates or price or prices and the adjustments thereof, if any, and all other
terms and conditions upon which conversions may be made.
(h) The amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation.
(i)Restrictions (in addition to those set forth in
Sections 6(b) and 6(c) of this Division A) on the issuance of shares of the
same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time amendments to
the Articles of Incorporation or Amended Articles of Incorporation of the
Corporation fixing, with respect to each such series, the matters specified in
clauses (a) through (i) of this Section 1.
2. The holders of Serial Preferred Shares of each series,
in preference to the holders of Common Stock and any other class of shares
ranking junior to the Serial Preferred Shares, shall be entitled to receive,
out of any funds legally available and when and as declared by the Board of
Directors, cash dividends at the rate (and no more) for such series fixed in
accordance with the provisions of Section 1 of this Division A, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after the
date or dates fixed with respect to such series. No dividends may be paid upon
or declared and set apart for any of the Serial Preferred Shares for any
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratably in proportion to the respective
annual dividend rates fixed therefor, shall be declared and paid or a sum
sufficient for payment thereof set apart for the Serial Preferred Shares of all
series.
3. So long as any Serial Preferred Shares are
outstanding, no dividend (except a dividend payable in Class A Shares or Class
B Shares or in other shares of the Corporation ranking junior to the Serial
Preferred Shares) shall be paid or declared or any distribution be made (except
as aforesaid) in respect of the Class A Shares or Class B Shares or in respect
of other shares of the Corporation ranking junior to the Serial Preferred
Shares, nor shall any Class A Shares or Class B Shares or any other shares of
the Corporation ranking junior to the Serial Preferred Shares be purchased,
retired or otherwise acquired by the Corporation (except out of the proceeds of
the sale of Class A Shares or Class B Shares or other shares of the Corporation
ranking junior to the Serial Preferred Shares received by the Corporation
subsequent to January 28, 1984),
(a) unless all accrued and unpaid dividends on the Serial
Preferred Shares of all series, including the full dividends for the
current quarterly dividend period, shall have been declared and
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paid or a sum sufficient for payment thereof set apart, and
(b) unless redemption of Serial Preferred Shares of any
series shall have been effected from, and any required payment shall
have been made into, any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this Division
A.
4. (a) Subject to the express terms of each series and
to the provisions of Section 6(b)(iii) of this Division A, the Corporation (i)
may from time to time redeem all or any part of the Serial Preferred Shares of
any series at the time outstanding at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Division A, or (ii) shall from time to time
make such redemptions of the Serial Preferred Shares as may be required to
fulfill the requirements of any sinking fund provided for shares of such series
at the applicable sinking fund redemption price fixed in accordance with the
provisions of Section 1 of this Division A, together, in each case, with
accrued and unpaid dividends to the redemption date.
(b) Notice of every redemption shall be mailed by
first class mail, postage prepaid, to the holders of record of the Serial
Preferred Shares to be redeemed, at their respective addresses then appearing
on the books of the Corporation, not less than 30 or more than 60 days prior to
the date fixed for redemption. At any time before or after notice has been
given as above provided, the Corporation may deposit the aggregate redemption
price of the Serial Preferred Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of more
than $50,000,000, named in such notice, directed to be paid to the respective
holders of the Serial Preferred Shares to be redeemed, in amounts equal to the
redemption price of all Serial Preferred Shares so to be redeemed, together
with accrued and unpaid dividends thereon to the redemption date, upon
surrender of the share certificate or certificates held by such holders, and
upon the giving of such notice and the making of such deposit such holders
shall cease to be shareholders with respect to such shares, and after such
notice shall have been given and such deposit shall have been made such holders
shall have no claim against the Corporation or privileges with respect to such
shares except only to receive such money from such bank or trust company
without interest or the right to exercise, before the redemption date, any
unexpired rights of conversion. In case less than all of the outstanding
Serial Preferred Shares of any series are to be redeemed, the Corporation shall
select by lot the shares so to be redeemed in such manner as shall be
prescribed by its Board of Directors. If the holders of Serial Preferred
Shares that shall have been called for redemption shall not, within six years
after such deposit, claim the amount deposited for the redemption of their
shares, any such bank or trust company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and
to such holders.
(c) Any Serial Preferred Shares that are redeemed by
the Corporation pursuant to the provisions of this Section 4 of this Division A
and any Serial Preferred Shares that are purchased and delivered in
satisfaction of any sinking fund requirements provided for shares of such
series and any Serial Preferred Shares that are converted in accordance with
their express terms shall be cancelled and not reissued. Any Serial Preferred
Shares otherwise acquired by the Corporation shall be restored to the status of
authorized and unissued Serial Preferred Shares without serial designation.
5. (a) The holders of Serial Preferred Shares of any
series shall, in case of liquidation, dissolution or winding up of the affairs
of the Corporation, be entitled to receive in full, out of the assets of the
Corporation, including its capital, before any amount shall be paid or
distributed among the holders of Class A Shares or Class B Shares or any other
shares ranking junior to the Serial Preferred Shares, the amounts fixed with
respect to shares of any such series in accordance with Section 1 of this
Division A, plus in any such event an amount equal to all dividends accrued and
unpaid thereon to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up of the affairs of the Corporation. In
case the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Serial Preferred
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Shares of all series of the full preferential amount to which the holders
thereof are respectively entitled, then such net assets shall be distributed
ratably upon outstanding Serial Preferred Shares of all series in proportion to
the full preferential amount to which the holder of each such share is
entitled. After payment to holders of Serial Preferred Shares of the full
preferential amounts as aforesaid, holders of Serial Preferred Shares as such
shall have no right or claim to any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation
into or with any other corporation, or the merger of any other corporation into
it, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation shall not be deemed to be a
dissolution, liquidation or winding up of the Corporation for the purposes of
this Section 5 of this Division A.
6. (a) The holders of Serial Preferred Shares of all
series shall be entitled to one vote for each such share upon all matters
presented to shareholders; and, except as otherwise provided herein or required
by law, the holders of Serial Preferred Shares of all series and the holders of
Class A Shares shall vote together as one class on all matters. If, and as
often as, the Corporation shall be in default in the payment of the equivalent
of six quarterly dividends (whether or not consecutive) on any series of Serial
Preferred Shares at any time outstanding, whether or not earned or declared,
the holders of Serial Preferred Shares of all series voting separately as a
class and in addition to all other rights to vote for Directors shall
thereafter be entitled to elect, as herein provided, two members of the Board
of Directors of the Corporation; provided, however, that the special class
voting rights provided for herein, when the same shall have become vested,
shall remain so vested until all accrued and unpaid dividends on the Serial
Preferred Shares of all series then outstanding shall have been paid, whereupon
the holders of Serial Preferred Shares shall be divested of their special class
voting rights in respect of subsequent elections of Directors, subject to the
revesting of such special class voting rights in the event hereinabove
specified in this Section 6(a). In the event of default entitling the holders
of Serial Preferred Shares to elect two Directors as above specified, a special
meeting of the shareholders for the purpose of electing such Directors shall be
called by the Secretary of the Corporation upon written request of, or may be
called by, the holders of record of at least 10% of the Serial Preferred Shares
of all series at the time outstanding, and notice thereof shall be given in the
same manner as that required for the annual meeting of shareholders; provided,
however, that the Corporation shall not be required to call such special
meeting if the annual meeting of shareholders shall be held within 90 days
after the date of receipt of the foregoing written request from the holders of
Serial Preferred Shares. At any meeting at which the holders of Serial
Preferred Shares shall be entitled to elect Directors, the holders of not less
than one-third of the outstanding Serial Preferred Shares of all series,
present in person or by proxy, shall be sufficient to constitute a quorum and
the vote of the holders of a majority of such shares so present at any such
meeting at which there shall be a quorum shall be sufficient to elect the
members of the Board of Directors that the holders of Serial Preferred Shares
are entitled to elect as herein-before provided. The two Directors who may be
elected by the holders of Serial Preferred Shares pursuant to the foregoing
provisions shall be in addition to any other Directors then in office or
proposed to be elected otherwise than pursuant to such provisions, and nothing
in such provisions shall prevent any change otherwise permitted in the total
number of Directors of the Corporation or required the resignation of any
Directors elected otherwise than pursuant to such provisions.
(b) The affirmative vote or consent of the holders of at
least two-thirds of the then outstanding Serial Preferred Shares of all series,
given in person or by proxy, either in writing or at a meeting called for the
purpose at which the holders of Serial Preferred Shares of all series shall
vote separately as a class, shall be necessary to effect any one or more of the
following (but, insofar as the holders of Serial Preferred Shares are
concerned, such action may be effected with such vote or consent):
(i) Any amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or of the Regulations of
the Corporation that affects adversely the voting powers, rights or
preferences of the holders of Serial Preferred Shares; provided,
however, that for the purpose of this clause (i) only, neither the
amendment of the Articles of Incorporation of the Corporation to
authorize, or to increase the authorized or outstanding number of,
Serial Preferred Shares or of any
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shares of any class ranking on a parity with or junior to the Serial
Preferred Shares, nor the increase by the shareholders or Board of
Directors pursuant to the Regulations of the number of Directors of
the corporation shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of Serial Preferred Shares; and
provided further that, if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all then
outstanding series of Serial Preferred Shares, only the affirmative
vote or consent of the holders of at least two-thirds of the number of
the then outstanding shares of the series so affected shall be
required;
(ii) The authorization, or the increase in the authorized
number, of shares of any class ranking prior to the Serial Preferred
Shares; or
(iii) The purchase or redemption (whether for sinking
fund purposes or otherwise) of less than all the then outstanding
Serial Preferred Shares except in accordance with a purchase offer
made to all holders of record of Serial Preferred Shares, unless all
dividends on all Serial Preferred Shares then outstanding for all
previous quarterly dividend periods shall have been declared and paid
or funds therefore set apart and all accrued sinking fund obligations
applicable to all Serial Preferred Shares shall have been complied
with.
(c) The affirmative vote or consent of the holders of at
least a majority of the then outstanding Serial Preferred Shares of all series,
given in person or by proxy, either in writing or at a meeting called for the
purpose at which the holders of Serial Preferred Shares of all series shall
vote separately as a class, shall be necessary (but insofar as the holders of
Serial Preferred Shares are concerned, such action may be effected with such
affirmative vote or consent) to authorize any shares ranking on a parity with
the Serial Preferred Shares or an increase in the authorized number of Serial
Preferred Shares.
7. For the purposes of this Division A:
(a) Whenever reference is made to shares
"ranking prior to the Serial Preferred Shares," such reference shall
mean and include all shares of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation are given
preference over the rights of the holders of Serial Preferred Shares.
(b) Whenever reference is made to shares "on a
parity with the Serial Preferred Shares," such reference shall mean
and include all shares of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends and as to
distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation rank on an
equality with the rights of the holders of Serial preferred Shares.
(c) Whenever reference is made to shares
"ranking junior to the Serial Preferred Shares," such reference shall
mean and include all shares of the Corporation other than those
defined under clauses (a) and (b) of this Section 7 as shares "ranking
prior to" or "on a parity with" the Serial Preferred Shares.
DIVISION B: Express Terms of Class A Shares and Class B Shares.
--------------------------------------------------
1. GENERAL. The Class A Shares and Class B Shares
shall be subject to the express terms of the Serial Preferred Shares and any
series thereof. The powers, preferences and rights of the Class A Shares and
Class B Shares and the qualifications, limitations and restrictions thereof,
shall in all respects be identical, except as otherwise required by law or as
expressly provided in these Amended Articles of Incorporation.
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2. VOTING.
a. Each shareholder of the Corporation shall be
entitled to one vote for each Class A Share standing in
such shareholder's name on the books of the Corporation on
all matters presented to shareholders for their vote,
consent, waiver, release or other action.
b. The holders of Class B Shares shall not be
entitled to vote on any matter submitted to shareholders
for their vote, consent, waiver, release or other action
except as otherwise required by law.
3. DIVIDENDS AND DISTRIBUTIONS. Dividends and
distributions may be declared and paid to the holders of Class A Shares and
Class B Shares in cash, property, or other securities of the Corporation
(including shares of any class whether or not shares of such class are already
outstanding) out of funds legally available therefore. Each Class A Share and
each Class B Share shall have identical rights with respect to dividends and
distributions subject to the following:
a. subject to Section 4 of Division B of
Article Fourth, at the discretion of the Board of
Directors, a dividend or distribution in cash or property
on a Class B Share may be greater (but not less) than any
dividend or distributions in cash or property on a Class A
Share;
b. a dividend or distribution in shares of the
Corporation on Class A Shares may be paid or made in Class
A Shares or Class B Shares; and
c. a dividend or distribution in shares of the
Corporation on Class B Shares may be paid or made only in
Class B Shares.
4. MERGER, CONSOLIDATION, COMBINATION OR
DISSOLUTION OF THE CORPORATION. In the event of merger, consolidation or
combination of the Corporation with another entity (whether or not the
Corporation is the surviving entity) or in the event of dissolution of the
Corporation, holders of Class B Shares shall be entitled to receive in respect
of each Class B Share the same indebtedness, other securities, cash, rights, or
any other property, or any combination of shares, evidences of indebtedness,
securities, cash, rights or any other property, as holders of Class A Shares
shall be entitled to receive in respect to each share, except that any common
stock that holders of Class B Shares shall be entitled to receive in any such
event may have terms substantially similar to those of the Class B Shares as
set forth in this Division B of Article Fourth.
5. SPLITS OR COMBINATIONS OF SHARES. If the
Corporation shall in any manner split, subdivide or combine the outstanding
Class A Shares or Class B Shares, the outstanding shares of the other such
class shall be proportionately split, subdivided or combined in the same manner
and on the same basis as the outstanding shares of the class that has been
split, subdivided or combined.
6. CHANGE IN NUMBER OF AUTHORIZED CLASS B SHARES.
The number of authorized Class B Shares may be increased or decreased (but not
below the number then outstanding) by the affirmative vote of the holders of a
majority of the aggregate number of outstanding Class A Shares entitled to vote
in the election of Directors voting as a single class.
7. CLASS B PROTECTION PROVISIONS.
a. If, after the Effective Time, a Person or group, each
as defined in Section 7(k) of Division B of this Article Fourth, acquires
beneficial ownership of shares representing 15% or more of the number of then
outstanding Class A Shares and such Person or group (a "Significant
Shareholder") does not then beneficially own an equal or greater percentage of
all then outstanding shares of the Class B Shares, all of which Class B Shares
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must have been acquired by such Significant Shareholder after the Effective
Time, such Significant Shareholder must, within a ninety (90) day period
beginning the day after becoming a Significant Shareholder, make a public cash
tender offer in compliance with all applicable laws and regulations to acquire
additional Class B Shares as provided in this Section 7 of Division B of
Article Fourth (a "Class B Protection Transaction").
b. In each Class B Protection Transaction, the
Significant Shareholder must make a public tender offer to acquire that number
of additional Class B Shares determined by (i) multiplying the percentage of
the number of outstanding Class A Shares beneficially owned and acquired after
the Effective Time by such Significant Shareholder by the total number of Class
B Shares outstanding on the date such Person or group became a Significant
Shareholder, and (ii) subtracting therefrom the number of Class B Shares
beneficially owned by such Significant Shareholder on the date such Person or
group became a Significant Shareholder which were acquired after the Effective
Time (as adjusted for stock splits, stock dividends and similar
recapitalizations). The Significant Shareholder must acquire all shares
validly tendered; or if the number of Class B Shares tendered to the
Significant Shareholder exceeds the number of shares required to be acquired
pursuant to this Section 7(b), the number of Class B Shares acquired from each
tendering holder shall be pro rata based on the percentage that the number of
shares tendered by such shareholder bears to the total number of shares
tendered by all tendering holders.
c. The offer price for any Class B Shares required to be
purchased by the Significant Shareholder pursuant to Section 7 of Division B of
this Article Fourth shall be the greatest of (i) the highest price per share
paid by the Significant Shareholder for any Class A Shares or Class B Shares
during the six month period ending on the date such Person or group became a
Significant Shareholder (or such shorter period if the date such Person or
group became a Significant Shareholder is not more than six months following
the Effective Time), (ii) the highest reported sale price of Class A Shares or
Class B Shares on the New York Stock Exchange (or such other securities
exchange or quotation system as is then the principal trading market for such
shares) during the 30 day period preceding such Person or group becoming a
Significant Shareholder, and (iii) the highest reported sale price of Class A
Shares or Class B Shares on the New York Stock Exchange (or such other
securities exchange or quotation system as is then the principal trading market
for such shares) on the business day preceding the date the Significant
Shareholder makes the tender offer required by this Section 7 of Division B of
this Article Fourth. For purposes of Section 7(d) of Division B of this
Article Fourth, the applicable date for each calculation required by clauses
(i) and (ii) of the preceding sentence shall be the date on which the
Significant Shareholder becomes required to engage in the Class B Protection
Transaction for which such calculation is required. In the event that the
Significant Shareholder has acquired Class A Shares or Class B Shares in the
six month period ending on the date such Person or group becomes a Significant
Shareholder for consideration other than cash, the value of such consideration
per share of Class A Shares shall be as determined in good faith by the Board
of Directors.
d. A Class B Protection Transaction shall also be
required to be effected by any Significant Shareholder each time that the
Significant Shareholder acquires after the Effective Time beneficial ownership
of additional Class A Shares in an amount equal to or greater than the next
higher integral multiple of 5% in excess of 15% (e.g., 20%, 25%, 30%, etc.) of
the number of outstanding Class A Shares if such Significant Shareholder does
not then own an equal or greater percentage of the Class B Shares (all of which
Class B Shares must have been acquired by such Significant Shareholder after
the Effective Time). Such Significant Shareholder shall be required to make a
public cash tender offer to acquire that number of Class B Shares prescribed by
the formula set forth in Section 7(b) of Division B of this Article Fourth, and
must acquire all shares validly tendered or a pro rata portion hereof, as
specified in such Section 7(b), at the price determined pursuant to Section
7(c) of Division B of this Article Fourth, even if a previous Class B
Protection Transaction resulted in fewer Class B Shares being tendered than
required in the previous offer.
e. If any Significant Shareholder fails to make an offer
required by this Section 7 of Division B of this Article Fourth, or to purchase
shares validly tendered and not withdrawn (after proration, if any), such
Significant Shareholder shall not be entitled to vote any Class A Shares
beneficially owned by such Significant Shareholder and acquired by such
Significant Shareholder after the Effective Time unless and until such
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requirements are complied with or unless and until all Class A Shares causing
such offer requirement to be effective are no longer beneficially owned by such
Significant Shareholder. To the extent that the voting power of any Class A
Shares is so suspended, such shares shall not be included in the determination
of aggregate voting shares for any purpose under these Amended Articles of
Incorporation or the Ohio Revised Code. The requirement to engage in a Class B
Protection Transaction is satisfied by the making of the requisite offer and
purchasing validly tendered shares pursuant to this Section 7 of Division B of
this Article Fourth, even if the number of shares tendered is less than the
number of shares included in the required offer.
f. The Class B Protection Transaction requirement shall
not apply to any increase in percentage beneficial ownership of Class A Shares
resulting solely from a change in the aggregate amount of Class A Shares
outstanding, provided that any acquisition after such change which resulted in
any Person or group beneficially owning fifteen percent (15%) or more of the
number of outstanding Class A Shares (or an additional 5% or more of the number
of shares of the Class A Shares after the last acquisition which triggered the
requirement for a Class B Protection Transaction) shall be subject to any Class
B Protection Transaction requirement that would be imposed pursuant to this
Section 7 of Division B of this Article Fourth.
g. In connection with Sections 7(a) through 7(d) of
Division B of this Article Fourth, the following Class A Shares shall be
excluded for the purpose of determining the Class A Shares beneficially owned
by such Person or group but not for the purpose of determining shares
outstanding:
(i) shares beneficially owned by such Person
or group at the Effective Time;
(ii) shares acquired by will or by the laws of
descent and distribution, or by gift that is made in good
faith and not for the purpose of circumventing this
Section 7 of Division B of Article Fourth or by
foreclosure of a bona fide loan;
(iii) shares acquired upon issuance or sale by
the Corporation;
(iv) shares acquired by operation of law
(including a merger or consolidation effected for the
purpose of recapitalizing such Person or reincorporating
such Person in another jurisdiction but excluding a merger
or consolidation effected for the purpose of acquiring
another Person);
(v) shares acquired in exchange for Class B
Shares by a holder of Class B Shares (or by a parent,
lineal descendant or donee of such holder of Class B
Shares who received such Class B Shares from such holder)
if the Class B Shares so exchanged were acquired by such
holder directly from the Corporation as a result of a
stock split effected by these Amended Articles of
Incorporation at the Effective Time or any subsequent
stock split or as a dividend on Class A Shares; and
(vi) shares acquired by a plan of the
Corporation qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended, or any successor
provision thereto, or acquired by reason of a distribution
from such a plan.
h. In connection with Sections 7(a) through 7(b) of this
Division B of Article Fourth, for purposes of calculating the number of shares
of Class B Shares beneficially owned by any Persons or group:
(i) Class B Shares acquired by gift shall be
deemed to be beneficially owned by such Person or member
of a group if such gift was made in good faith and not for
the purpose of circumventing the operations of this
Section 7 of Division B of this Article Fourth; and
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(ii) only Class B Shares owned of record by
such Person or member of a group or held by others as
nominees of such Person or member of a group and
identified as such to the Corporation shall be deemed to
be beneficially owned by such Person or group (provided
that Class B Shares with respect to which such Person or
member of a group has sole investment and voting power
shall be deemed to be beneficially owned thereby).
i. All calculations with respect to percentage beneficial
ownership of either issued and outstanding Class A Shares or Class B Shares
will be based upon the numbers of issued and outstanding shares reflected in
either the records of or a certification from the Corporation's stock transfer
agent or reported by the Corporation on the last to be filed of (i) the
Corporation's most recent Annual Report on Form 10-K, (ii) its most recent
Quarterly Report on Form 10-Q, (iii) its most recent Current Report on Form
8-K, and (iv) its most recent definitive proxy statement filed with the
Securities and Exchange Commission.
j. For purposes of this Section 7 of Division B of this
Article Fourth, the term "Person" means any individual, partnership,
corporation, association, trust, or other entity (other than the Corporation).
Subject to Sections 7(g) and 7(h) of Division B of this Article Fourth,
"beneficial ownership" shall be determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
successor regulation and the formation or existence of a "group" shall be
determined pursuant to Rule 13d- 5(b) under the 1934 Act or any successor
regulation, subject to the following qualifications:
(i) relationships by blood or marriage between
or among any Persons will not constitute any of such
Persons as a member of a group with such other Person,
absent affirmative attributes of concerted action; and
(ii) any Person acting in his official capacity
as a director or officer of the Corporation shall not be
deemed to beneficially own shares where such ownership
exists solely by virtue of such Person's status as a
trustee (or similar position) with respect to shares held
by plans or trusts for the general benefit of employees or
former employees of the Corporation, and actions taken or
agreed to be taken by a Person in such Person's official
capacity as an officer or director of the Corporation
will not cause such Person to become a member of a group
with any other Person.
8. CHANGE OF CLASS B SHARES. Each Class B Share
(whether or not then issued) shall be changed automatically into one Class A
Share upon the earlier to occur of (i) at the time the number of outstanding
Class A Shares is less than 10% of the aggregate number of outstanding Class A
Shares and Class B Shares; or (ii) upon resolution of the Board of Directors,
if as a result of the existence of the Class B Shares, either the Class A
Shares or Class B Shares or both are excluded from trading on the New York
Stock Exchange, the American Stock Exchange and all other principal national
securities exchanges then in use and are also excluded from quotation on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") - National Market System and other comparable quotation systems then
in use. Upon such change, the total number of Class A Shares the Corporation
shall have authority to issue, shall be 150,000,000 and the total number of
Class B Shares shall be zero (0) and all references to Class B Shares shall be
of no further force or effect. In making the determination in subparagraphs
(i) or (ii), the Board of Directors may conclusively rely on information and
documentation available to it, including but not limited to, information or
certification from its stock transfer agent, filings made with the Securities
and Exchange Commission, any stock exchange, the National Association of
Securities Dealers, Inc., or any other national quotation system. At the time
set forth in (i) or (ii) above, the Class B Shares shall be deemed changed
automatically into shares of Class A Shares and stock certificates formerly
representing Class B Shares shall thereupon and thereafter be deemed to
represent a like number of Class A Shares. The determination of the Board of
Directors that either (i) or (ii) has occurred shall be conclusive and binding
and the change of each Class B Share into one Class A Share shall remain
effective regardless of whether (i) or (ii) has occurred in fact.
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FIFTH: A Director or officer of the Corporation shall
not be disqualified by his office from dealing or contracting with the
Corporation as a vendor, purchaser, employee, agent or otherwise, nor shall any
transaction contract or other act of the Corporation be void or voidable or in
any way affected or invalidate by reason of the fact that any Director or
officer, or any firm in which such Director or officer is a member, or any
corporation of which such Director or officer is a shareholder, Director or
officer, is in any way interested in such transaction, contract or other act,
provided the fact that such officer, Director, firm or corporation is so
interested shall be disclosed or shall be known to the Board of Directors of
such members thereof as shall be present at any meeting of the Board of
Directors at which action upon any such transaction, contract or other act
shall be taken; nor shall any such Director or officer be accountable or
responsible to the Corporation for or in respect of any such transaction,
contract or other act of the Corporation or for any gains or profits realized
by him by reason of the fact that he or any firm of which he is a member of any
corporation of which he is a shareholder, Director or officer is interested in
such transaction, contract or other act; any such Director may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
of the Corporation which shall authorize or take action in respect of any such
transaction, contract or other act, and may vote there at to authorize, ratify
or approve any such transaction, contract or other act with like force and
effect as if he or any firm of which he is a member or any corporation of which
he is a shareholder Director of officer were not interested in such
transaction, contract or other act.
SIXTH: No holder or any class of shares of the
Corporation shall have any pre-emptive or preferential rights to subscribe to
or purchase any shares of any class of stock of the Corporation, whether now or
hereafter authorized and whether unissued or in the treasury, or any
obligations convertible into shares of any class of stock of the Corporation,
at any time issued or sold, or any rights to subscribe to or purchase any
thereof.
SEVENTH: The Board of Directors is hereby authorized to
fix and determine and to vary the amount of working capital of the Corporation,
to determine whether any, and, if any, what part of its surplus, however
created or arising, shall be used or disposed of or declared in dividends, or
paid to shareholders, and, without action by the shareholders, to use and apply
such surplus, or any part thereof, at any time, or from time to time, in the
purchase or acquisition of shares of any one class or combination of classes of
shares, voting trust certificates for shares, bonds, debentures, notes, scrip,
warrants, obligations, evidences of indebtedness of the Corporation or any
other securities of the Corporation, to such extent or amount and in such
manner and upon such price and other terms as the Board of Directors shall deem
expedient without regard to the differences among the classes of shares or
other securities in price and other terms under which shares may be purchased
or in the relative number of shares that may be available for purchase. The
Board of Directors hereby is authorized to fix at any time and from time to
time the amount of consideration for which the Corporation may issue its shares
or any other securities, whether or not greater consideration could be received
upon the issue or sale of the same number of shares of another class.
EIGHTH: Any and every statute of the State of Ohio
hereafter enacted whereby the rights, powers or privileges of corporations or
of the shareholders of corporations organized under the laws of the State of
Ohio are increased or diminished or in any way affected, or whereby effect is
given to the action taken by any number, less than all, of the shareholders of
any such corporation, shall apply to the Corporation and shall be binding not
only upon the Corporation but upon every shareholder of the Corporation to the
same extent as if such statute had been in force at the date of the filing of
these Articles of Incorporation in the office of the Secretary of State.
NINTH: Notwithstanding any provisions of the Ohio Revised
Code now or hereafter in force otherwise requiring for any purpose the vote,
consent, waiver or release of the holders of shares entitling them to exercise
two-thirds, or any other proportion of the voting power of the Corporation or
of any class or classes of shares thereof, such action, unless otherwise
expressly required by statute or by the Articles of Incorporation, may be taken
by the vote, consent, waiver or release of the holders of shares entitling them
to exercise a majority of the voting power of the Corporation or of such class
or classes.
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TENTH: FAIR PRICE OR 80% VOTE PROVISION
1. VOTING REQUIREMENT. Unless both the fair price
requirement set forth in Section 2 and the other conditions set forth in
Section 3 have been satisfied, the affirmative vote of the holders of 80% of
all outstanding shares of the Corporation entitled to vote in elections of
Directors, voting together as a single class, shall be required for the
authorization or approval of any of the following transactions:
(a) MERGER OR CONSOLIDATION. The merger or consolidation
of the Corporation or any of its subsidiaries with or into an
Interested Party (as hereinafter defined).
(b) DISPOSITION OF ASSETS. The sale, lease, pledge, or
other disposition, in one transaction or in a series of
transactions from the Corporation or any of its subsidiaries to an
Interested Party, or from an Interested Party to the Corporation
or any of its subsidiaries, of assets having an aggregate fair
market value (as hereinafter defined) of $1,000,000 or more.
(c) ISSUANCE OR TRANSFER OF SECURITIES. The issuance,
sale, or other transfer, in one transaction or in a series of
transactions, by the Corporation or any of its subsidiaries to an
Interested Party, or by an Interested Party to the Corporation or
any of its subsidiaries, of securities for cash or other
consideration having an aggregate fair market value of $1,000,000
or more.
(d) LIQUIDATION OR DISSOLUTION. The liquidation or
dissolution of the Corporation proposed by an Interested Party.
(e) RECLASSIFICATION OR RECAPITALIZATION. The
reclassification of securities, recapitalization of the
Corporation or other transaction that has the effect of increasing
the proportionate share of any class of outstanding securities of
the Corporation or any of its subsidiaries beneficially owned (as
hereinafter defined) by an Interested Party or of otherwise
diluting the position of any shareholder of the Corporation in
comparison with the position of an Interested Party.
(f) OTHER TRANSACTIONS. Any other transactions or series
of transactions that is similar in purpose or effect to those
referred to in clauses (a) through (e) of this Section 1.
This voting requirement shall apply even though no vote, or a lesser percentage
vote, may be required by law, by any other provision of these Articles of
Incorporation or otherwise. The term "business combination", as used in this
Article, means any of the transactions referred to in clauses (a) through (f)
of this Section 1.
2. FAIR PRICE REQUIREMENT. The fair price
requirement will be satisfied if the consideration to be received in the
business combination by the holders of shares of the Corporation's Common Stock
and Serial Preferred Stock, and by the Corporation or any of its subsidiaries,
as the case may be, meets the following tests:
(a) Amount of Consideration to be Received by
Shareholders. If any holder of the shares of the Corporation's Common Stock or
Serial Preferred Stock, other than an Interested Party, is to receive
consideration in the business combination for any of the shares, the aggregate
amount of cash and fair market value of any other consideration to be received
per share may not be less than the sum of --
(1) the greatest of (i) the highest per share
price, including commissions, paid by the Interested Party for any
shares of the same class or series during the two-year period ending
on the date of the most recent purchase by the Interested Party of any
such shares, (ii) the highest sales price reported for shares of the
same class or series traded on a national securities exchange or in
the over-the-counter market during the one-year period preceding the
first public announcement of the proposed business
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transaction or (iii) in the case of Serial Preferred Stock, the amount
of the per share liquidation preference; plus
(2) interest on the per share price calculated
at the rate of ten percent (10%) per annum, compounded annually from
the date the Interested Party first became an Interested Party until
the business combination is consummated, less the per share amount of
cash dividends payable to holders of record on record dates in the
interim, up to the amount of such interest.
For purposes of this clause (a) per share amounts will be adjusted for any
stock dividend, stock split or similar transaction.
(b) FORM OF CONSIDERATION TO BE RECEIVED BY SHAREHOLDERS.
The consideration to be received by holders of shares of the Corporation's
Common Stock of Serial Preferred Stock must be in cash or in the same form as
was previously paid by the Interested Party for shares of the same class or
series; if the Interested Party previously paid for such shares with different
forms of consideration, the consideration to be received by the holders of the
shares must be in cash or in the same form as was previously paid by the
Interested Party for the largest number of shares previously acquired by it.
The provisions of this clause (b) are not intended to diminish the aggregate
amount of cash and fair market value of any other consideration that any holder
of shares of the Corporation's Common Stock or Serial Preferred Stock is
otherwise entitled to receive upon the liquidation or dissolution of the
Corporation, under the terms of any contract with the Corporation or an
Interest Party, or otherwise.
(c) CONSIDERATION TO BE RECEIVED BY THE CORPORATION OR
ANY OF ITS SUBSIDIARIES. If the Corporation or any of its subsidiaries is to
receive consideration in the business combination, the consideration to be
received must be fair to the Corporation or its subsidiaries, as determined by
the continuing directors (as hereinafter defined).
3. OTHER CONDITIONS. The other conditions will be
satisfied if, from the time the Interested Party became an Interested Party
until the completion of the business combination, each of the following has at
all times been and continues to be true:
(a) CONTINUING DIRECTORS. The Corporation's Board of
Directors has included at least five continuing directors. The term
"continuing director," used in this Article, means an individual who
(i) either was a director of the Corporation at the time the
Interested Party became an Interested Party or was subsequently
nominated or elected by the other continuing directors and (ii) is not
an affiliate or associate (as hereinafter defined) of the Interested
Party. All actions required or permitted to be taken by the
continuing directors under this Article shall be taken by the
unanimous written consent of all continuing directors or by the vote
of a majority of the continuing directors at a meeting convened upon
such notice as would be required for a meeting of the full Board of
Directors.
(b) NO ACQUISITION OF ADDITIONAL SHARES. The Interested
Party has not become the beneficial owner (as hereinafter defined) of
any additional shares of Common Stock or Serial Preferred Stock of the
Corporation, except (i) as part of the transaction that resulted in
the Interested Party becoming an Interested Party, (ii) upon
conversion of securities previously acquired by it or (iii) pursuant
to a stock dividend or stock split.
(c) NO SPECIAL BENEFITS TO THE INTERESTED SHAREHOLDER.
The Interested Party has not received, directly or indirectly, the
benefit (except proportionately as a shareholder) of any loan,
advance, guaranty, pledge, or other financial assistance, tax credit
or deduction or other benefit from the Corporation or any of its
subsidiaries.
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(d) PROXY STATEMENT. A proxy or information statement
describing the business combination and complying with the
requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations under it (or any subsequent provisions
replacing that Act and the rules and regulations under it) has been
mailed at least 30 days prior to the completion of the business
combination to the holders of all outstanding shares of the
Corporation entitled to vote in election of Directors, whether or not
shareholder approval of the business combination is required. If
deemed advisable by the continuing directors, the proxy or information
statement shall contain a recommendation by the continuing directors
as to the advisability (or inadvisability) of the business combination
and/or an opinion by an investment banking firm, selected by the
continuing directors and retained at the expense of the Corporation,
as to the fairness (or unfairness) of the business combination to
holders of shares of the Corporation's Common Stock or Serial
Preferred Stock other than the Interested Party.
(e) NO OMISSION OR REDUCTION OF DIVIDENDS. Except to the
extent approved by the continuing directors, there has been no (i)
failure to pay in full, when and as due, any dividends on the
Corporation's Serial Preferred Stock or (ii) failure to pay or
reduction in the annual rate of dividends on the shares of the
Corporation's Common Stock, whether directly or indirectly through a
reclassification, recapitalization or otherwise.
(f) NO CHANGE IN BUSINESS OR CAPITAL STRUCTURE. Except
to the extent approved by the continuing directors, there has been no
material change in (i) the nature of the business conducted by the
Corporation and its subsidiaries or (ii) the capital structure of the
Corporation, including but not limited to any change in the number of
outstanding shares of Common Stock, the number and series of any
outstanding shares of Serial Preferred Stock and the types and
aggregate principal amount of any outstanding debt securities, except
for changes resulting from the exercise of previously issued options,
warrants or other rights, the conversion of previously issued shares,
the issuance of previously authorized debt securities and the
mandatory redemption or retirement of debt securities in accordance
with their terms.
4. DEFINITIONS: As used in this Article TENTH:
(a) "AFFILIATE"; "ASSOCIATE". The terms "affiliate"
and "associate" have the meanings ascribed to them in Rule 12b- 2 of
the General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on May 4, 1984.
(b) "BENEFICIAL OWNERSHIP". A person or entity is
deemed to "beneficially own" shares if, directly or indirectly through
any contract, understanding, arrangement, relationship or otherwise,
that person or entity has or shares (i) the power to vote or to
dispose, or to direct the voting or disposition, of the shares or (ii)
the right to acquire the shares pursuant to any contract or
arrangement, upon the exercise of any option, warrant or right, upon
the conversion of any other shares, upon revocation of a trust or
otherwise. The person or entity is also deemed to "beneficially own"
shares that are beneficially owned by affiliates and associates of
that person or entity.
(c) "BUSINESS COMBINATION". The term "business
combination" has the meaning ascribed to it in Section 1 of this
Article.
(d) "CONTINUING DIRECTORS". The term "continuing
directors" has the meaning ascribed to it in clause (a) of Section 3
of this Article.
(e) "FAIR MARKET VALUE". The term "fair market
value" means (i), in the case of securities listed on a national
securities exchange or on the National Association of Securities
Dealers, Inc.'s National Market, the highest closing sales price
reported during the 30-day period immediately preceding the date
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in question for securities of the same class or series traded on such
exchange or market, or, if such securities are not listed on any
exchange or such National Market, the highest closing bid quotation
with respect to such securities during the 30-day period preceding the
date in question on the National Association of Securities Dealers,
Inc. Automatic Quotation System or any system then in use, or, if no
quotations are available, the value determined by the continuing
directors, and (ii) in the case of other securities and of
consideration other than securities or cash, the value determined by
the continuing directors.
(f) "INTERESTED PARTY". The term "Interested Party"
means any person or entity that, together with its affiliates and
associates, is at the time of, or has been within the two-year period
immediately prior to, the consummation of a business combination the
beneficial owner of shares having at least 20% of the aggregate voting
power of all outstanding shares of the Corporation entitled to vote in
elections of Directors. The term "Interested Party," for purposes of
the requirements and conditions of this Article, also includes the
affiliates and associates of the Interested Party. Notwithstanding
the foregoing, the Corporation and its subsidiaries, and any
profit-sharing, employee stock ownership, employee pension, or other
employee benefit plan of the Corporation or any subsidiary, are not
deemed to be "Interested Parties".
5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED
PARTY. Nothing contained in this Article shall be construed to relieve any
Interested Party from any fiduciary obligations imposed by law.
6. AMENDMENT, REPEAL, ETC. Notwithstanding any
other provision of these Amended Articles of Incorporation or the Regulations
of the Corporation (and notwithstanding the fact that a lesser percentage may
be required by law, these Amended Articles of Incorporation or the Regulations
of the Corporation), the affirmative vote of the holders of 80% of the
outstanding shares of the Corporation entitled to vote in elections of
Directors, voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, this Article Tenth.
ELEVENTH: These Amended Articles supersede the
existing Articles of Incorporation of the Corporation and any and all
subsequent amendments thereto.
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