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Exhibit 3(a)
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ARTICLES OF INCORPORATION
OF
R. G. BARRY CORPORATION,
AS AMENDED
FIRST: The name of the corporation is R. G. Barry Corporation (the
"Corporation").
SECOND: The place in Ohio where the principal office of the
Corporation is to be located is the City of Pickerington, County of Fairfield.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be formed under the General Corporation
Law of Ohio as set forth in Sections 1701.01 to 1701.98 inclusive of the Ohio
Revised Code (the "OGCL").
FOURTH: I. The total number of shares which the Corporation
shall have authority to issue is 20,000,000 shares of which 15,000,000, par
value $1.00 per share, shall be of a class designated "Common Shares",
4,000,000, par value $1.00 per share, shall be of a class designated "Class A
Preferred Shares" and 1,000,000, par value $1.00 per share, shall be of a class
designated "Class B Preferred Shares". The Class A Preferred Shares and Class
B Preferred Shares are sometimes collectively referred to herein as the
"Preferred Shares".
II. The Board of Directors of the Corporation
is authorized to provide for the issuance from time to time in one or more
series of any number of authorized and unissued shares of Class A Preferred
Shares and Class B Preferred Shares. The Board of Directors of the Corporation
is further authorized, subject to limitations prescribed by law and the
provisions of this Article FOURTH, to establish the number of shares to be
included in each such series, and to fix the designation, relative rights,
preferences, qualifications and limitations of the shares of each such series.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
A. The number of shares constituting that series and the
distinctive designation of that series;
B. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and
whether they shall be payable in
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preference to, or in another relation to, the dividends payable on any
other class or classes or series of shares;
C. Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or
exchange, including provision for adjustment of the conversion or
exchange rate in such events as the Board of Directors shall determine;
D. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the
manner of selecting shares for redemption if less than all shares are to
be redeemed, the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption, which
amount may vary under different conditions and at different redemption
dates;
E. Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of shares of that
series, and, if so, the terms and amounts of such sinking fund;
F. The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any additional shares
(including additional shares of such series or of any other series) and
upon the payment of dividends or the making of other distributions on, and
the purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding shares of the Corporation;
G. The right of the shares of that series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and whether such rights shall be in preference to, or in
another relation to, the comparable rights of any other class or classes
or series of shares; and
H. Any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that series.
III. Subject to the provisions of any applicable
law, the holders of outstanding Class A Preferred Shares and the holders of
outstanding Class B Preferred Shares shall possess voting power for the
election of directors and for all other purposes, each holder of record of
Class A Preferred Shares being entitled to one-tenth of one vote for each Class
A Preferred
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Share standing in his name on the books of the Corporation and each holder of
record of Class B Preferred Shares being entitled to ten votes for each Class B
Preferred Share standing in his name on the books of the Corporation.
IV. The Board of Directors of the Corporation
is authorized, subject to limitations prescribed by law and the provisions of
this Article FOURTH, to provide for the issuance from time to time of any
number of authorized and unissued Common Shares, and shall determine the terms
under which and the consideration for which the Corporation shall issue its
Common Shares.
A. Subject to the provisions of any applicable law, each holder
of record of Common Shares shall be entitled to one vote for each Common
Share standing in his name on the books of the Corporation for the election
of directors and for all other purposes.
B. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Shares, after payment
shall have been made to the holders of Preferred Shares of the full amount
of dividends to which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of Preferred Shares, the
holders of Common Shares shall be entitled, to the exclusion of the
holders of Preferred Shares of any and all series, to receive such
dividends as from time to time may be declared by the Board of Directors.
C. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Shares, in the event of
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been made to the
holders of Preferred Shares of the full amount to which they shall be
entitled pursuant to the resolution or resolutions providing for the
issue of any series of Preferred Shares, the holders of Common Shares
shall be entitled, to the exclusion of the holders of Preferred Shares of
any and all series, to share, ratably according to the number of Common
Shares held by them, in all remaining assets of the Corporation available
for distribution to its shareholders.
V. The affirmative vote of the holders of at least a
majority of the votes entitled to be cast by the holders of all the then
outstanding shares of any class of Capital Stock (as defined in Article
SEVENTH), voting together as a single class, without regard to series, present
in person or represented
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by proxy and entitled to vote in respect thereof, given at an annual meeting or
at any special meeting duly called, shall be required to adopt any proposal
which (A) increases or decreases the par value of the issued shares of the
particular class of Capital Stock; (B) changes into a lesser number of shares
of the same class of Capital Stock or into the same or a different number of
shares of any other class of Capital Stock, with or without par value,
theretofore or then authorized shares of the particular class of Capital Stock;
(C) changes the express terms of, or adds express terms to, the shares of the
particular class of Capital Stock in any manner substantially prejudicial to
the holders thereof; (D) changes the express terms of issued shares of any
class of Capital Stock senior to the particular class of Capital Stock in any
manner substantially prejudicial to the holders of shares of the particular
class of Capital Stock; (E) authorizes shares of another class of Capital Stock
which are convertible into, or authorizes the conversion of shares of another
class of Capital Stock into, shares of the particular class of Capital Stock,
or authorizes the directors to fix or alter conversion rights of shares of
another class of Capital Stock which are convertible into shares of the
particular class of Capital Stock.
VI. No holder of any shares of the Corporation of any
class or series or of options, warrants or other rights to purchase shares of
the Corporation of any class or series or of other securities of the
Corporation shall have any preemptive or preferential right to purchase or
subscribe for any unissued shares of the Corporation of any class or series or
any additional shares of the Corporation, of any class or series, to be issued
by reason of any increase in the authorized shares of the Corporation of any
class or series, or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for shares of the Corporation of
any class or series, or carrying any right to purchase shares of the
Corporation of any class or series, but any such unissued shares, additional
authorized issue of shares of any class or series or securities convertible
into or exchangeable for shares, or carrying any right to purchase shares, may
be issued and disposed of pursuant to resolution of the Board of Directors to
such holders or to any other persons, firms, corporations or associations, and
upon such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
VII. The Board of Directors of the Corporation shall have
the power to cause the Corporation from time to time and at any time to
purchase, hold, sell, transfer or otherwise deal with (A) shares of any class
or series issued by it; (B) any security or other obligation of the Corporation
which may confer upon the holder thereof the right to convert the same into
shares
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of any class or series authorized by these Articles of Incorporation; and (C)
any security or other obligation of the Corporation; which may confer upon the
holder thereof the right to purchase shares of any class or series authorized
by these Articles of Incorporation. The Corporation shall have the right to
repurchase, if and when any shareholder desires to sell, or on the happening of
any event is required to sell, shares of any class or series issued by the
Corporation. The authority granted in this Paragraph VII shall not limit the
plenary authority of the Board of Directors to purchase, hold, sell, transfer
or otherwise deal with shares of any class or series, securities, or other
obligations issued by the Corporation or authorized by these Articles of
Incorporation.
VIII. A. DESIGNATION OF SERIES. The series shall be
designated "Series I Junior Participating Class B Preferred Shares," par
value $1.00 per share (hereinafter called Series I Class B Preferred Shares").
B. NUMBER OF SHARES. The authorized number of shares of
Series I Class B Preferred Shares is 1,000,000, which number the Board of
Directors may increase or decrease to the extent appropriate in connection with
the Rights issued pursuant to the Rights Agreement between the Company
[Corporation] and The Huntington National Bank, as Rights Agent, dated as of
February 29, 1988; provided, that no decrease shall reduce the number of Series
I Class B Preferred Shares to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Company.
C. DIVIDEND PAYMENT DATES. The dates on which dividends on
shares of the Series I Class B Preferred Shares shall be payable are the
fifteenth day of March, June, September and December of each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series I Class B Preferred
Shares.
D. DIVIDEND RATE. The dividend rate for the Series I Class B
Preferred Shares shall be, subject to the provision for adjustment hereinafter
set forth, 10 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions (other than a dividend payable in
Common Shares (by reclassification or otherwise)), declared on the Common
Shares, par value $1.00 per share, of the Company since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance
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of any share or fraction of a share of Series I Class B Preferred Shares. In
the event the Company shall at any time after February 29, 1988 (the "Rights
Declaration Date") (i) declare or pay any dividend on its Common Shares payable
in Common Shares, (ii) subdivide the outstanding Common Shares or (iii) combine
the outstanding Common Shares into a smaller number of shares, then in each
such case, the amount to which holders of shares of Series I Class B Preferred
Shares were entitled immediately prior to such event under this paragraph shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
Subject to the prior and superior rights of the holders of any
preferred shares ranking prior and superior to the Series I Class B Preferred
Shares with respect to dividends, the Company shall declare a dividend or
distribution on the Series I Class B Preferred Shares as provided in the
immediately preceding subparagraph after it declares a dividend or distribution
on the Common Shares (other than a dividend payable in Common Shares); provided
that, in the event no dividend or distribution shall have been declared on the
Common Shares during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $.05 per
share on the Series I Class B Preferred Shares shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
E. CUMULATIVE DATES. Dividends shall begin to accrue and be
cumulative on outstanding shares of Series I Class B Preferred Shares from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series I Class B Preferred Shares, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of
holders of shares of Series I Class B Preferred Shares entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series I Class B Preferred
Shares in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares
of Series I Class B Preferred Shares entitled to receive payment of a dividend
or distribution declared
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thereon, which record date shall be no more than 45 days prior to the date
fixed for the payment thereof.
F. VOTING RIGHTS. The holders of shares of Series I Class B
Preferred Shares shall have the voting rights set forth in Article FOURTH of
the Articles of Incorporation and as may otherwise be required by law.
G. REACQUIRED SHARES. Any Series I Class B Preferred Shares
purchased or otherwise acquired by the Company in any manner whatsoever shall
be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued Series I
Class B Preferred Shares and may be reissued as part of a new series of Class B
Preferred Shares to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
H. LIQUIDATION, DISSOLUTION OR WINDING UP.
(1) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Company, no distribution shall be made to the
holders of shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series I Class B Preferred Shares unless,
prior thereto, the holders of shares of Series I Class B Preferred Shares shall
have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series I Class B Liquidation Preference"). Following the
payment of the full amount of the Series I Class B Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series I
Class B Preferred Shares unless, prior thereto, the holders of Common Shares
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series I Class B Liquidation Preference
by (ii) l0 (as appropriately adjusted as set forth in subparagraph 3 below to
reflect such events as stock splits, stock dividends and recapitalizations with
respect to the Common Shares) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of the Series I Class B
Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series I Class B Preferred Shares and Common Shares, respectively,
holders of the Series I Class B Preferred Shares and holders of Common Shares
shall receive their ratable and proportionate share of the remaining assets to
be distributed in the ratio of the Adjustment Number to l with respect to such
Series I Class B Preferred Shares and Common Shares, on a per share basis,
respectively.
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(2) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series I Class B Liquidation
Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series I Class B Preferred
Shares, then such remaining assets shall be distributed ratably to the holders
of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Shares.
(3) In the event the Company shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
Common Shares, (ii) subdivide the outstanding Common Shares, or (iii) combine
the outstanding Common Shares into a smaller number of shares, then in each
such case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the numerator
of which is the number of Common Shares outstanding immediately after such
event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
I. CONSOLIDATION, MERGER, ETC. In case the Company shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Shares are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series I Class B Preferred Shares shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 10 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each Common Share is changed or exchanged. In the
event the Company shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Shares payable in Common Shares, (ii) subdivide
the outstanding Common Shares, or (iii) combine the outstanding Common Shares
into a smaller number of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series I Class B Preferred Shares shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
J. NO REDEMPTION. The Series I Class B Preferred Shares
shall not be redeemable.
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K. RANKING. The Series I Class B Preferred Shares shall rank
junior to all other series of the Company's Class A or Class B Preferred Shares
as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
L. AMENDMENT. So long as any Series I Class B Preferred
Shares are outstanding, the Articles of Incorporation of the Company shall not
be further amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series I Class B Preferred Shares
so as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series I Class B Preferred
Shares, voting separately as a class.
M. FRACTIONAL SHARES. Series I Class B Preferred Shares may
be issued in fractions of a share which shall entitle the holder, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series I Class B Preferred Shares.
FIFTH: The amount of stated capital with which the Corporation shall
begin business is $500.
SIXTH: The business and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors consisting of not less than
nine nor more than twelve directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The directors shall be divided into
three classes, designated Class I, Class II, and Class III. The election of
each class of directors shall be a separate election. The total number of
directors constituting the entire Board of Directors shall be apportioned among
the classes, as nearly equal as possible. Each class shall consist of at least
three directors.
At the 1984 annual meeting of shareholders, Class I directors
shall be elected for a one-year term, Class II directors for a two-year term
and Class III directors for a three-year term. At each succeeding annual
meeting of shareholders beginning in 1985, successors to the class of directors
whose term expires at that annual meeting shall be elected for a three-year
term. If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class at no less than three, as nearly equal as possible, and any additional
director of any class elected to fill a vacancy resulting from an increase in
such class shall hold office for a
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term that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board of Directors
that results from an increase in the number of directors, and any other vacancy
occurring in the Board of Directors, may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as that
of his predecessor.
All the directors or all the directors of a particular class,
or any individual director, may be removed from office only for cause, by the
affirmative vote of the holders of at least 80 percent of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock (as
defined in Article SEVENTH), voting together as a single class, present in
person or represented by proxy and entitled to vote in respect thereof, at an
annual meeting or at any special meeting duly called; provided that unless all
the directors, or all the directors of a particular class, are removed, no
individual director shall be removed if the votes of a sufficient number of
shares are cast against his removal which, if cumulatively voted at an election
of all the directors of a particular class, would be sufficient to elect at
least one director. In case of any such removal, a new director may be elected
at the same meeting for the unexpired term of each director removed. Failure
to elect a director to fill the unexpired term of any director removed shall be
deemed to create a vacancy in the Board of Directors.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Capital Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of these Articles of Incorporation applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this Article
SIXTH unless expressly provided by such terms.
Nomination for election to the Board of Directors of the
Corporation at a meeting of shareholders by any shareholder of the Corporation
shall be made by notice in writing delivered or mailed by first class United
States mail postage prepaid, to
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the Secretary of the Corporation, and received by him not less than 30 days nor
more than 60 days prior to any meeting of shareholders called for the election
of directors; provided, however, that if less than 35 days' notice of the
meeting is given to shareholders, such nomination shall have been mailed or
delivered to the Secretary of the Corporation not later than the close of
business on the seventh day following the day on which the notice of meeting
was mailed. Such notice shall set forth as to each proposed nominee who is not
an incumbent director (i) the name, age, business address and, if known, the
residence address of each nominee proposed in such notice; (ii) the principal
occupation or employment of each such nominee; (iii) the number of shares of
Capital Stock that are beneficially owned by each such nominee and by the
nominating shareholder; and (iv) any other information concerning the nominee
that must be disclosed of nominees in proxy solicitations pursuant to Rule
14(a) of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (collectively, the
"Exchange Act"), (or any subsequent provisions replacing the Exchange Act), and
such notice shall be accompanied by the written consent of the proposed nominee
to serve as a director.
The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
Notwithstanding any other provision of these Articles of
Incorporation or the Regulations of the Corporation (and notwithstanding the
fact that a lesser percentage may be specified by law or in any agreement with
any national securities exchange or any other provision of these Articles of
Incorporation or the Regulations of the Corporation), the affirmative vote of
the holders of at least 80 percent of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock, voting together as a
single class, present in person or represented by proxy and entitled to vote in
respect thereof, given at an annual meeting or at any special meeting duly
called, shall be required to amend, alter, change or repeal, or adopt any
provisions inconsistent with, this Article SIXTH; provided that this Paragraph
shall not apply to, and such 80 percent vote shall not be required for, any
amendment, alteration, change, repeal or adoption unanimously recommended by
the Board of Directors of the Corporation if all of such directors are persons
who would be eligible to serve as Continuing Directors within the meaning of
Paragraph III of Article SEVENTH.
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SEVENTH: I. A. Notwithstanding any affirmative vote required by
law or in any agreement with any national securities exchange or any other
provision of these Articles of Incorporation or the Regulations of the
Corporation or otherwise, and except as otherwise expressly provided in
Paragraph II of this Article SEVENTH:
(i) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (a) any Interested
Shareholder (as hereinafter defined) or (b) any other corporation
(whether or not itself an Interested Shareholder) which is or after
such merger or consolidation would be an Affiliate or Associate (as
hereinafter defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) with any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder involving any assets or
securities of the Corporation, any Subsidiary or any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder which constitutes more than 20 percent of the Fair Market
Value (as hereinafter defined), as determined by a majority of the
Continuing Directors, of the total consolidated assets of the
Corporation and its Subsidiaries taken as a whole, as of the end of
its most recent fiscal year ended prior to the determination being
made; or
(iii) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf
of an Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder; or
(iv) any reclassification of securities (including any
reverse share split), or recapitalization of the Corporation, or
any merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Shareholder) which has the effect,
directly or indirectly, of increasing the proportionate share of any
class of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly beneficially owned by any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
(v) any agreement, contract or other arrangement
providing for any one or more of the actions specified in Clauses (i)
to (iv) of this Subparagraph (A),
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shall require the affirmative vote of at least 80 percent of the votes
entitled to be cast by the holders of all then outstanding shares of
Voting Stock, voting together as a single class, present in person or
represented by proxy and entitled to vote in respect thereof, at an
annual meeting or at any special meeting duly called.
B. The term "Business Combination" as used in this
Article SEVENTH shall mean any transaction which is referred to in any
one or more of Clauses (i) through (v) of Subparagraph (A) of
Paragraph I.
C. As used in this Paragraph I of this Article SEVENTH,
a "series of transactions" shall be deemed to include not only a
series of transactions with the same Interested Shareholder but also a
series of separate transactions with an Interested Shareholder or any
Affiliate or Associate of such Interested Shareholder.
II. The provisions of Paragraph I of this
Article SEVENTH shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote, if any,
as is required by law or in any agreement with any national securities exchange
or Article NINTH or any other provision of these Articles of Incorporation or
the Regulations of the Corporation, if all of the conditions specified in
either of the following Subparagraphs (A) or (B) are met:
A. The Business Combination shall have been approved by a
majority (whether such approval is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock which caused
the Interested Shareholder to become an Interested Shareholder) of the
Continuing Directors (as hereinafter defined)
B. All of the following conditions shall have been met:
(i) The aggregate amount of (x) cash and (y)
the Fair Market Value as of the date of the consummation of
the Business Combination of consideration other than cash to
be received per share by holders of Common Shares in such
Business Combination shall be at least equal to the highest
amount determined under Subclauses (a), (b), (c), (d) and (e)
below:
a. (if applicable) the highest per share price
(including any brokerage commissions,
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transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Interested Shareholder for
any Common Share or any share (a "Delaware Share")
of Common Stock, par value $1.00 per share, of R.
G. Barry Corporation, a Delaware corporation ("RGB
Delaware"), in connection with the acquisition by
the Interested Shareholder of beneficial ownership
of such share (l) within the two-year period
immediately prior to the first public announcement
of the proposal of the Business Combination (the
"Announcement Date") or (2) in the transaction in
which it became an Interested Shareholder,
whichever is higher;
b. the Fair Market Value per Common
Share, or Delaware Share, as the case may be, on
the Announcement Date or on the date on which the
Interested Shareholder became an Interested
Shareholder (such latter date is referred to in
this Article SEVENTH as the "Determination Date"),
whichever is higher;
c. (if applicable) the price per
share equal to the Fair Market Value per Common
Share or Delaware Share determined pursuant to
Subclause (B)(i)(b) of this Paragraph II,
multiplied by the ratio of (l) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Interested Shareholder for
any Common Share or Delaware Share in connection
with the acquisition by the Interested Shareholder
of beneficial ownership of Common Shares or
Delaware Shares within the two-year period
immediately prior to the Announcement Date to (2)
the Fair Market Value per Common Share on the first
day in such two-year period on which the Interested
Shareholder acquired beneficial ownership of either
any Common Share or any Delaware Share;
d. the per share book value of the
Common Shares, or Delaware Shares, as the case may
be, as reported at the end of the fiscal quarter
immediately prior to the Announcement Date; and
e. the earnings per Common Share or
Delaware Share for the four full consecutive fiscal
quarters immediately preceding the record date for
solicitation of votes on such Business Combination,
multiplied by the then price/earnings
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multiple (if any) of such Interested
Shareholder as customarily computed and reported in
the financial community;
(ii) The aggregate amount of (x) cash and (y)
the Fair Market Value as of the date of the consummation of
the Business Combination of consideration other than cash to
be received per share by holders of shares of any class or, if
there be more than one series in a class, then, any series, of
outstanding Preferred Shares, shall be at least equal to the
highest amount determined under Subclauses (a), (b), (c) and
(d) below:
a. (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Interested Shareholder for
any share of such class or, if there be more than
one series in a class, then, such series, of
Preferred Shares in connection with the acquisition
by the Interested Shareholder of beneficial
ownership of such share (1) within the two-year
period immediately prior to the Announcement Date
or (2) in the transaction in which it became an
Interested Shareholder, whichever is higher;
b. the highest preferential amount
per share to which the holders of shares of such
class or, if there be more than one series in a
class, then, such series, of Preferred Shares would
be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the affairs of the Corporation, regardless of
whether the Business Combination to be consummated
constitutes such an event;
c. the Fair Market Value per share of
such class or, if there be more than one series in
a class, then, such series, of Preferred Shares on
the Announcement Date or on the Determination Date,
whichever is higher; and
d. (if applicable) the price per
share equal to the Fair Market Value per share of
such class or, if there be more than one series in
a class, then, such series, of Preferred Shares
determined pursuant to Subclause (B)(ii)(c) of this
Paragraph II, multiplied by the ratio of
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(1) the highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of
the Interested Shareholder for any share of such
class or, if there be more than one series in a
class, then, such series, of Preferred Shares in
connection with the acquisition by the Interested
Shareholder of beneficial ownership of shares of
such class or series of Preferred Shares within the
two-year period immediately prior to the
Announcement Date to (2) the Fair Market Value per
share of shares of such class or, if there be more
than one series in a class, then, such series, of
Preferred Shares on the first day in such two-year
period on which the Interested Shareholder acquired
beneficial ownership of any share of such class or
series of Preferred Shares;
The provisions of this Clause (B)(ii) shall be required to be
met with respect to every class or, if there be more than one
series in a class, then, every series, of outstanding
Preferred Shares, whether or not the Interested Shareholder
has previously acquired beneficial ownership of any shares of
a particular class or series of Preferred Shares;
(iii) The consideration to be received by holders
of a particular class or series of outstanding Capital Stock
shall be in cash or in the same form as previously has been
paid by or on behalf of the Interested Shareholder in
connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of
Capital Stock. If the consideration so paid for shares of any
class or series of Capital Stock varied as to form, the form
of consideration for such class or series of Capital Stock
shall be either cash or the form used to acquire beneficial
ownership of the largest number of shares of such class or
series of Capital Stock previously acquired by the Interested
Shareholder;
(iv) After such Interested Shareholder has
become an Interested Shareholder and prior to the consummation
of such Business Combination: (a) except as approved by a
majority of the Continuing Directors, there shall have been no
failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Shares; (b) there shall have been (1) no
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reduction in the annual rate of dividends paid on the Common
Shares (except as necessary to reflect any subdivision of the
Common Shares), except as approved by a majority of the
Continuing Directors, and (2) an increase in such annual rate
of dividends as necessary to reflect any reclassification
(including any reverse share split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding Common Shares, unless
the failure so to increase such annual rate is approved by a
majority of the Continuing Directors; and (c) such Interested
Shareholder shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the
transaction which results in such Interested Shareholder
becoming an Interested Shareholder and except in a transaction
which, after giving effect thereto, would not result in any
increase in the Interested Shareholder's percentage beneficial
ownership of any class of Capital Stock;
(v) After such Interested Shareholder has
become an Interested Shareholder, such Interested Shareholder
shall not have received the benefit, directly or indirectly
(except proportionately as a shareholder of the Corporation),
of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided
by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise;
(vi) A proxy or information statement describing
the proposed Business Combination and complying with the
requirements of the Exchange Act (or any subsequent provisions
replacing the Exchange Act), shall be mailed to all
shareholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed
pursuant to the Exchange Act or subsequent provisions). The
proxy statement shall contain on the first page thereof, in a
prominent place, any recommendation as to the advisability (or
inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may choose to state and,
if deemed advisable by a majority of the Continuing Directors,
the opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness (or
not) of the terms of the Business Combination, from the point
of view of the holders of the outstanding shares of Capital
Stock
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other than the Interested Shareholder and its Affiliates and
Associates (such investment banking firm to be paid a
reasonable fee for its services by the Corporation); and
(vii) Such Interested Shareholder shall not have
made any major change in the Corporation's business or equity
capital structure without the approval of the majority of the
Continuing Directors.
III. For purposes of this Article SEVENTH:
A. The term "person shall mean any individual, firm,
corporation or other entity and shall include any group comprised of any person
and any other person with whom such person or any Affiliate or Associate (as
hereinafter defined) of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring, holding,
voting or disposing of Capital Stock of the Corporation.
B. The term "Interested Shareholder" shall mean any person
(other than (i) the Corporation or any Subsidiary, (ii) any profit-sharing,
employee share ownership or other employee benefit plan of the Corporation or
any Subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity, or (iii) persons who, immediately after the
adoption of these Articles of Incorporation, are Affiliates of RGB Delaware,
and the respective successors, executors, administrators, legal
representatives, heirs and legal assigns (provided that any such assign is such
an Affiliate immediately prior to assignment, transfer or other disposition to
such assign) of such persons) who or which:
(i) is the beneficial owner (as hereinafter defined) of
more than 10 percent of the Voting Stock; or
(ii) is an Affiliate or Associate of the Corporation and
at any time within the two-year period immediately prior to the date
in question was the beneficial owner of 10 percent or more of the
Voting Stock.
C. A person shall be a "beneficial owner" of any Capital
Stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or
Associates has, directly or indirectly, (a) the right to acquire
(whether such right is exercisable immediately or
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only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (b) the
right to vote pursuant to any agreement, arrangement or understanding;
or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock.
D. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Subparagraph (B) of this Paragraph III, the
number of shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned through application of Subparagraph (C) of this
Paragraph III but shall not include any other shares of Capital Stock which may
be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
E. The terms "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the Exchange Act as
in effect on March 1, 1984.
F. The term "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in Subparagraph (B) of this Paragraph III, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Corporation.
G. The term "Continuing Director" means any member of the
Board of Directors, while such person is a member of the Board of Directors of
the Corporation, who is not an Affiliate or Associate or representative of the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Continuing Director, while such successor is a member of the Board, who is not
an Affiliate or Associate or representative of the Interested Shareholder and
is recommended or elected to succeed a Continuing Director by a majority of
Continuing Directors.
H. The term "Capital Stock" shall mean all capital stock of
this Corporation authorized to be issued from time to time under Article FOURTH
of these Articles of Incorporation, and
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the term "Voting Stock" shall mean all Capital Stock which by its terms may be
voted on all matters submitted to shareholders of this Corporation generally.
I. The term "Fair Market Value" means (i) in the case of
shares, the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the Composite Tape
for New York Stock Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities exchange
registered under the Act on which such stock is listed, or, if such stock is
not listed on any such exchange, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any successor system then in use, or if no such quotations
are available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good faith;
and (ii) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined in good faith by a
majority of the Continuing Directors.
J. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in Clauses (B)(i) and (ii) of Paragraph II of this Article SEVENTH
shall include Common Shares and/or the shares of any other class of Preferred
Shares retained by the holders of such shares.
IV. The Board of Directors shall have the power
and duty to determine for the purposes of this Article SEVENTH, on the basis of
information known to them after reasonable inquiry, (A) whether a person is an
Interested Shareholder, (B) the number of shares of Capital Stock or other
securities beneficially owned by any person, and (C) whether a person is an
Affiliate or Associate of another. Any such determination made in good faith
shall be binding and conclusive on all parties.
V. Nothing contained in this Article SEVENTH
shall be construed to relieve any Interested Shareholder from any fiduciary
obligation imposed by law.
VI. The fact that any Business Combination
complies with the provisions of Paragraph II of this Article SEVENTH shall not
be construed to impose any fiduciary duty, obligation or responsibility on the
Board of Directors, or any member thereof, to approve such Business Combination
or recommend its adoption or approval to the shareholders of the Corporation,
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nor shall such compliance limit, prohibit or otherwise restrict in any manner
the Board of Directors, or any member thereof, with respect to evaluations of
or actions and responses taken with respect to such Business Combination.
VII. Notwithstanding any other provisions of
these Articles of Incorporation or the Regulations of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law or in
any agreement with any national securities exchange or any other provision of
these Articles of Incorporation or the Regulations of the Corporation), the
affirmative vote of the holders of at least 80 percent of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock, voting
together as a single class, present in person or represented by proxy and
entitled to vote in respect thereof, at an annual meeting or any special
meeting duly called, shall be required to amend, alter, change or repeal, or
adopt any provisions inconsistent with, this Article SEVENTH; provided that
this Paragraph VII shall not apply to, and such 80 percent vote shall not be
required for, any amendment, alteration, change, repeal or adoption unanimously
recommended by the Board of Directors of the Corporation if all of such
directors are persons who would be eligible to serve as Continuing Directors
within the meaning of Paragraph III of this Article SEVENTH.
EIGHTH: I. MANDATORY INDEMNIFICATION. The Corporation shall
indemnify any officer or director of the Corporation who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action threatened or
instituted by or in the right of the Corporation), by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit),partnership, joint venture, trust or other enterprise,
against expenses (including, without limitation, attorneys' fees, filing fees,
court reporters' fees and transcript costs), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, he had no
reasonable cause to believe his conduct was unlawful. A person claiming
indemnification under this Paragraph I shall be presumed, in respect of any act
or omission giving rise to such claim for indemnification, to have acted in
good faith and in a manner he reasonably believed to be in or not
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opposed to the best interests of the Corporation, and with respect to any
criminal matter, to have had no reasonable cause to believe his conduct was
unlawful, and the termination of any action, suit or proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
II. COURT-APPROVED INDEMNIFICATION. Anything
contained in these Articles, the Regulations of the Corporation or elsewhere to
the contrary notwithstanding:
(A) the Corporation shall not indemnify any officer or
director of the Corporation who was a party to any completed action or
suit instituted by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or
foreign, nonprofit or for profit), partnership, joint venture, trust
or other enterprise, in respect of any claim, issue or matter asserted
in such action or suit as to which he shall have been adjudged to be
liable for acting with reckless disregard for the best interests of
the corporation or misconduct (other than negligence) in the
performance of his duty to the Corporation or such other entity unless
and only to the extent that the Court of Common Pleas of Fairfield
County, Ohio or the court in which such action or suit was brought
shall determine upon application that, despite such adjudication of
liability, and in view of all the circumstances of the case, he is
fairly and reasonably entitled to such indemnity as such Court of
Common Pleas or such other court shall deem proper; and
(B) the Corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Paragraph II.
III. INDEMNIFICATION FOR EXPENSES. Anything
contained in these Articles, the Regulations of the Corporation or elsewhere to
the contrary notwithstanding, to the extent that an officer or director of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Paragraph I of this Article EIGHTH,
or in defense of any claim, issue or matter therein, he shall be promptly
indemnified by the Corporation against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs)
actually and reasonably incurred by him in connection therewith.
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IV. DETERMINATION PERIOD. Any indemnification
required under Paragraph I of this Article EIGHTH and not precluded under
Paragraph II of this Article EIGHTH shall be made by the Corporation only upon
a determination that such indemnification of the officer or director is proper
in the circumstances because he has met the applicable standard of conduct set
forth in Paragraph I of this Article EIGHTH. Such determination may be made
only (A) by a majority vote of a quorum consisting of directors of the
Corporation who were not and are not parties to, or threatened with, any such
action, suit or proceeding, or (B) if such a quorum is not obtainable or if a
majority of a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for the Corporation, or any person to be indemnified, within the past
five years, or (C) by the shareholders, or (D) by the Court of Common Pleas of
Fairfield County, Ohio or (if the Corporation is a party thereto) the court in
which such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this Paragraph IV at
any time [including, without limitation, any time before, during or after the
time when any such determination may be requested of, be under consideration by
or have been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by the
shareholders under division (C) of this Paragraph IV]; and no failure for any
reason to make such determination, and no decision for any reason to deny any
such determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Paragraph IV shall be evidence in rebuttal of the
presumption recited in Paragraph I of this Article EIGHTH. Any determination
made by the disinterested directors under division (A) or by independent legal
counsel under division (B) of this Paragraph IV to make indemnification in
respect of any claim, issue or matter asserted in an action or suit threatened
or brought by or in the right of the Corporation shall be promptly communicated
to the person who threatened or brought such action or suit, and within ten
(10) days after receipt of such notification such person shall have the right
to petition the Court of Common Pleas of Fairfield County, Ohio or the court in
which such action or suit was brought, if any, to review the reasonableness of
such determination.
V. ADVANCES FOR EXPENSES. Expenses
(including, without limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs) incurred in defending any action, suit or proceeding
referred to in Paragraph I of this Article EIGHTH shall be paid by the
Corporation in advance of the
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final disposition of such action, suit or proceeding to or on behalf of the
officer or director promptly as such expenses are incurred by him, but only if
such officer or director shall first agree, in writing, to repay all amounts so
paid in respect of any claim, issue or other matter asserted in such action,
suit or proceeding in defense of which he shall not have been successful on the
merits or otherwise:
(A) if it shall ultimately be determined as provided in
Paragraph IV of this Article EIGHTH that he is not entitled to be
indemnified by the Corporation as provided under Paragraph I of this
Article EIGHTH; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the Corporation in such action or suit,
he shall have been adjudged to be liable for acting with reckless
disregard for the best interests of the Corporation or misconduct
(other than negligence) in the performance of his duty to the
Corporation, unless and only to the extent that the Court of Common
Pleas of Fairfield County, Ohio or the court in which such action or
suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is
fairly and reasonably entitled to all or part of such indemnification.
VI. ARTICLE EIGHTH NOT EXCLUSIVE. The
indemnification provided by this Article EIGHTH shall not be exclusive of, and
shall be in addition to, any other rights to which any person seeking
indemnification may be entitled under the Articles or the Regulations or any
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be an officer or director of the Corporation and shall inure to the benefit of
the heirs, executors, and administrators of such a person.
VII. INSURANCE. The Corporation may purchase
and maintain insurance or furnish similar protection, including, but not
limited to, trust funds, letters of credit, or self-insurance, on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the obligation or the power to indemnify him against
such liability
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under the provisions of this Article EIGHTH. Insurance may be purchased from
or maintained with a person in which the Corporation has a financial interest.
VIII. INDEMNITY AGREEMENTS. The Corporation may
from time to time enter into indemnity agreements with the persons who are
members of its Board of Directors and with such officers or other persons as
the Board may designate, such indemnity agreements to provide in substance that
the Corporation will indemnify such person to the fullest extent of the
provisions of this Article EIGHTH and/or to the fullest extent permitted under
Ohio law.
IX. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF
THE CORPORATION. The Corporation may, under procedures authorized from time to
time by the Board of Directors, grant rights to indemnification and to be paid
by the Corporation the expenses incurred in defending any proceeding in advance
of its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article EIGHTH.
X. CERTAIN DEFINITIONS. For purposes of this
Article EIGHTH, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article
EIGHTH shall be deemed to have been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Paragraph I of this Article EIGHTH, or in defense of any claim, issue
or other matter therein, if such action, suit or proceeding shall be
terminated as to such person, with or without prejudice, without the
entry of a judgment or order against him, without a conviction of him,
without the imposition of a fine upon him and without his payment or
agreement to pay any amount in settlement thereof (whether or not any
such termination is based upon a judicial or other determination of
the lack of merit of the claims made against him or otherwise results
in a vindication of him); and
(B) References to an "other enterprise" shall include
employee benefit plans; references to a "fine" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the best interests of the
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participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
the Corporation" within the meaning of that phrase as used in this
Article EIGHTH.
XI. VENUE. Any action, suit or proceeding to
determine a claim for indemnification under this Article EIGHTH may be
maintained by the person claiming such indemnification, or by the Corporation
in the Court of Common Pleas of Fairfield County, Ohio. The Corporation and
(by claiming such indemnification) each such person consent to the exercise of
jurisdiction over its or his person by the Court of Common Pleas of Fairfield
County, Ohio in any such action, suit or proceeding.
NINTH: Except as otherwise provided in these Articles of
Incorporation, including without limitation Article SEVENTH hereof, the
shareholders of the Corporation, at a meeting held for such purpose or
purposes, may by the affirmative vote of the holders of at least a majority of
the votes entitled to be cast by the holders of all then outstanding shares of
Voting Stock, voting together as a single class, present in person or
represented by proxy and entitled to vote in respect thereof, at an annual
meeting or any special meeting duly called, (i) adopt an agreement of merger or
consolidation; (ii) authorize the lease, sale, exchange, transfer, or other
disposition of all or substantially all of the assets of the Corporation; or
(iii) adopt a resolution providing for the dissolution of the Corporation.
TENTH: Except as otherwise provided in these Articles of
Incorporation, including without limitation Article SIXTH and Article SEVENTH
hereof, the shareholders of the Corporation, at a meeting held for such
purpose, may by the affirmative vote of the holders of at least a majority of
the votes entitled to be cast by the holders of all then outstanding shares of
Voting Stock, voting together as a single class, present in person or
represented by proxy and entitled to vote in respect thereof, at an annual
meeting or any special meeting duly called, alter or repeal any provision
contained in these Articles of Incorporation.
ELEVENTH: Shareholders shall not have the right to vote cumulatively
in the election of directors.
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