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EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DEVELOPERS DIVERSIFIED CORPORATION
The undersigned, desiring to form a corporation for profit
under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code, does
hereby certify:
FIRST: The name of the Corporation shall be Developers Diversified
Realty Corporation.
SECOND: The place in the State of Ohio where the principal office of
the Corporation is located is Moreland Hills, Cuyahoga County.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to 1701.98,
inclusive of the Ohio Revised Code.
FOURTH: The authorized number of shares of the Corporation is
59,000,000, consisting of 50,000,000 Common Shares, without par value
(hereinafter called "Common Shares"), 1,500,000 Class A Cumulative Preferred
Shares, without par value (hereinafter called "Class A Shares"), 1,500,000 Class
B Cumulative Preferred Shares, without par value (hereinafter called "Class B
Shares"), 1,500,000 Class C Cumulative Preferred Shares, without par value
(hereinafter called "Class C Shares"), 1,500,000 Class D Cumulative Preferred
Shares, without par value (hereinafter called "Class D Shares"), 1,500,000 Class
E Cumulative Preferred Shares, without par value (hereinafter called "Class E
Shares"), and 1,500,000 Noncumulative Preferred Shares, without par value
(hereinafter called "Noncumulative Shares").
DIVISION A
I. The Class A Cumulative Preferred Shares. The Class A Shares shall
have the following express terms:
Section 1. Series. The Class A Shares may be issued from time
to time in one or more series. All Class A Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class A Shares shall rank on a parity with the Class B
Shares, the Class C Shares, the Class D Shares, the Class E Shares and
the Noncumulative Shares and shall be identical to all Class B Shares,
Class C Shares, Class D Shares, Class E Shares and Noncumulative Shares
except (1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Class A Shares, Class B Shares,
Class C Shares, Class D Shares and Class E Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5,
both inclusive, and Item VII of this Division, which provisions shall
apply to all Class A Shares, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b)
of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such
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dates and periods may be established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if
any, for the purchase or redemption of shares of the series;
(g) 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;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item I) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class A Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class A Shares, shall be entitled to
receive out of any funds legally available therefor, and when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue and 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 shall be paid upon or
declared or set apart for any series of the Class A Shares for any
dividend period unless at the same time (i) a like proportionate
dividend for the dividend periods terminating on the same or any
earlier date, ratably in proportion to the respective annual dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class A Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class B Shares, Class C Shares, Class D Shares, Class
E Shares and Noncumulative Shares then issued and outstanding and
entitled to receive such dividends.
(b) So long as any Class A Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class A Shares, shall be paid or declared or any
distribution be made, except as aforesaid, in respect of the Common
Shares or any other shares ranking junior to the Class A Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
A Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class A Shares
received by the Corporation subsequent to the date of first issuance of
Class A Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
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(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item I.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class A Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares or Noncumulative Shares into Common Shares, or
(iii) the exercise by the Corporation of its rights pursuant to Item
VIII(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation, as amended, with respect to any other class or series of
capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code), any portion (the "Capital Gains Amount") of the dividends paid
or made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class A Shares shall be the amount that the total dividends paid or
made available to the holders of the Class A Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class A Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item I; and
(2) Shall, from time to time, make such redemptions
of each series of Class A 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
Item I; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class A Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than 30 days nor more than 60 days prior to
the date fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to Section 1
of this Item I prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price of Class A 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 not less than
$100,000,000, named in such notice and direct that there be paid to the
respective holders of the Class A Shares so to be redeemed amounts
equal to the redemption price of the Class A Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on surrender
of the share certificate or certificates held by such holders; and upon
the deposit of such notice in the mail and the making of such deposit
of money with such bank or trust company, such holders shall cease to
be shareholders with respect to such shares; and from and after the
time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim
against the Corporation with respect to such shares, except only the
right to receive such money from such bank or trust company without
interest or to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the outstanding
Class A Shares are to be redeemed, the Corporation shall select by lot
the shares so to be redeemed in such manner as shall be prescribed by
the Board of Directors.
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(2) If the holders of Class A Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
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 Class A Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Class A Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class A Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class A Shares, unless
all dividends on all Class A Shares then outstanding for all previous
and current dividend periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class A Shares of any series shall 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 the Common Shares or any other shares ranking
junior to the Class A Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item I, plus 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 the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative Shares in
proportion to the full preferential amount to which each such share is
entitled.
(2) After payment to the holders of Class A Shares of
the full preferential amounts as aforesaid, the holders of
Class A 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, the merger of any other Corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Class A Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class A Shares at
the time outstanding, whether or not earned or declared, for a number
of consecutive dividend payment periods which in the aggregate contain
at least 540 days, all holders of such Class A Shares, voting
separately as a class, together with all Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative Shares upon
which like voting rights have been conferred and are exercisable under
the circumstances
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described in Subsection 5(c), shall be entitled to elect, as herein
provided, a total of two members of the Board of Directors of the
Corporation; provided, however, that the holders of such Class A Shares
shall not exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which the holders
of not less than 50% of such Class A Shares are present in person or by
proxy; and provided further, that the special class voting rights
provided for in this paragraph when the same shall have become vested
shall remain so vested until all accrued and unpaid dividends on such
Class A Shares then outstanding shall have been paid or declared and a
sum sufficient for the payment thereof set aside for payment, whereupon
the holders of such Class A 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 above specified in this paragraph.
(2) In the event of default entitling holders of
Class A Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 Class A Shares upon which such default in the
payment of dividends exists 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 called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class A Shares. At any meeting at
which such holders of Class A Shares shall be entitled to
elect directors, holders of 50% of such Class A Shares,
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 such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
A Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class A Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class A Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class A Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class A Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class B Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes
proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class A Shares and of all such
other shares then entitled so to vote, voting as a class, shall elect
such directors. If the holders of any such other shares have elected
such directors prior to the happening of the default or event
permitting the holders of Class A Shares to elect directors, or prior
to a written request for the holding
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of a special meeting being received by the Secretary of the Corporation
as required above, then a new election shall be held with all such
other shares and the Class A Shares voting together as a single class
for such directors, resulting in the termination of the term of such
previously elected directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class A Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class A Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class A Shares
or of any shares ranking on a parity with or junior to the
Class A Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class A Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class A Shares.
(e) In the event, and only to the extent, that (1) Class A
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class A Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class A Shares or of any shares ranking on a parity with or junior to
the Class A Shares nor the Amendment of the provisions of the Code of
Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially
the preferences or voting or other rights of the holders of such
series.
Section 6. 9 1/2% Class A Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class A Shares, 460,000 shares are
designated as a series entitled "9 1/2% Class A Cumulative Redeemable
Preferred Shares" (hereinafter called "9 1/2% Class A Preferred
Shares"). The 9 1/2% Class A Preferred Shares shall have the express
terms set forth in this Item I as being applicable to all Class A
Shares as a class and, in addition, the following express terms
applicable to all 9 1/2% Class A Preferred Shares as a series of Class
A Shares:
(a) The annual dividend rate of the 9 1/2% Class A
Preferred Shares shall be 9 1/2% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 9 1/2% Class A Preferred Shares
shall be payable, if declared, quarterly on or about the 15th
day of March, June, September, and December each year, the
first quarterly dividend being payable, if declared, on
December 15, 1995. The dividends payable for each full
quarterly dividend period on each 9 1/2% Class A Preferred
Shares shall be $5.94.
Dividends for the initial dividend period on the
9 1/2% Class A
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Preferred Shares, or for any period shorter or longer than a
full dividend period on the 9 1/2% Class A Preferred Shares,
shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The aggregate dividend payable quarterly
to each holder of 9 1/2% Class A Preferred Shares shall be
rounded to the nearest one one-hundredth of one cent with
$.00005 being rounded upward. Each dividend shall be payable
to the holders of record on such record date, no less than 10
nor more than 30 days preceding the payment date thereof, as
shall be fixed from time to time by the Corporation's Board of
Directors.
(c) Dividends on 9 1/2% Class A Preferred Shares shall
be cumulative as follows:
(1) With respect to shares included in the
initial issue of 9 1/2% Class A Preferred Shares and
shares issued any time thereafter up to and including
the record date for the payment of the first dividend
on the initial issue of 9 1/2% Class A Preferred
Shares, dividends shall be cumulative from the date
of the initial issue of 9 1/2% Class A Preferred
Shares; and
(2) With respect to shares issued any time
after the aforesaid record date, dividends shall be
cumulative from the dividend payment date next
preceding the date of issue of such shares, except
that if such shares are issued during the period
commencing the day after the record date for the
payment of a dividend on 9 1/2% Class A Preferred
Shares and ending on the payment date of that
dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 9 1/2% Class A Preferred
Shares may not be redeemed prior to November 15, 2000. At any
time or from time to time on and after November 15, 2000 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 9 1/2% Class A Preferred Shares at a
redemption price of $250.00 per share plus, in each case, an
amount equal to all dividends accrued and unpaid thereon to
the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and
unpaid dividends) is payable solely out of the sale proceeds
of other capital shares of the Corporation, which may include
any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 9 1/2% Class A Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 9 1/2% Class A
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 9 1/2% Class A
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Item I, be deemed to be
made in respect of the earliest dividend period with respect
to which the Corporation is in default.
II. The Class B Cumulative Preferred Shares. The Class B Cumulative
Preferred Shares shall have the following express terms:
Section 1. Series. The Class B Shares may be issued from time
to time in one or more series. All Class B Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class B Shares shall rank on a parity with the Class A
Shares, the Class C Shares, the Class D Shares, the Class E Shares and
the Noncumulative Shares and shall be identical to all Class A Shares,
Class C Shares,
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Class D Shares, Class E Shares and Noncumulative Shares except (1) in
respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and
(2) only dividends on the Class A Shares, the Class B Shares, the Class
C Shares, the Class D Shares and the Class E Shares are cumulative as
set forth herein. Subject to the provisions of Sections 2 through 5,
both inclusive, and Item VII of this Division, which provisions shall
apply to all Class B Shares, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more series and
with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b)
of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if
any, for the purchase or redemption of shares of the series;
(g) 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;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item II) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), both inclusive, of this Section and is authorized to take such
actions with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class B Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class B Shares, shall be entitled to
receive out of any funds legally available therefor, and when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue and 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 shall be paid upon or
declared or set apart for any series of the Class B Shares for any
dividend period unless at the same time (i) a like proportionate
dividend for the dividend periods terminating on the same or any
earlier date, ratably in proportion to the respective annual dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class B Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the
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dividends payable for the dividend periods terminating on the same or
any earlier date (but, with respect to the Noncumulative Shares, only
with respect to the then current dividend period), ratably in
proportion to the respective dividend rates fixed therefor, shall have
been paid upon or declared or set apart for all Class A Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class B Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class B Shares, shall be paid or declared or any
distribution be made, except as aforesaid, in respect of the Common
Shares or any other shares ranking junior to the Class B Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
B Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class B Shares
received by the Corporation subsequent to the date of first issuance of
Class B Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment thereof set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item II.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption, retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class B Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares or Noncumulative Shares into Common Shares or
(iii) the exercise by the Corporation of its rights pursuant to Item
VIII(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation, as amended, with respect to any other class or series of
capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code), any portion (the "Capital Gains Amount") of the dividends paid
or made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent that it does not cause any dividends to fail to qualify
for the dividends paid deduction under Section 561 of the Code, the
portion of the Capital Gains Amount that shall be allocable to holders
of the Class B Shares shall be the amount that the total dividends paid
or made available to the holders of the Class B Shares for the year
bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class B Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item II; and
(2) Shall, from time to time, make such redemptions
of each series of Class B 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
Item II; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
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(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class B Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than 30 days nor more than 60 days prior to
the date fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to Section 1
of this Item II prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price of Class B 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 not less than
$100,000,000, named in such notice and direct that there be paid to the
respective holders of the Class B Shares so to be redeemed amounts
equal to the redemption price of the Class B Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on surrender
of the share certificate or certificates held by such holders; and upon
the deposit of such notice in the mail and the making of such deposit
of money with such bank or trust company, such holders shall cease to
be shareholders with respect to such shares; and from and after the
time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim
against the Corporation with respect to such shares, except only the
right to receive such money from such bank or trust company without
interest or to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the outstanding
Class B Shares are to be redeemed, the Corporation shall select by lot
the shares so to be redeemed in such manner as shall be prescribed by
the Board of Directors.
(2) If the holders of Class B Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
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 Class B Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Class B Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class B Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class B Shares, unless
all dividends on all Class B Shares then outstanding for all previous
and current dividend periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class B Shares of any series shall 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 the Common Shares or any other shares ranking
junior to the Class B Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item II, plus 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 the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and
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Noncumulative Shares in proportion to the full preferential amount to
which each such share is entitled.
(2) After payment to the holders of Class B Shares of
the full preferential amounts as aforesaid, the holders of
Class B 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, the merger of any other corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Class B Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class B Shares at
the time outstanding, whether or not earned or declared, for a number
of consecutive dividend payment periods which in the aggregate contain
at least 540 days, all holders of Class B Shares, voting separately as
a class, together with all Class A Shares, Class C Shares, Class D
Shares, Class E Shares and Noncumulative Shares upon which like voting
rights have been conferred and are exercisable under the circumstances
described in Subsection 5(c), shall be entitled to elect, as herein
provided, a total of two members of the Board of Directors of the
Corporation; provided, however, that the holders of such Class B Shares
shall not exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which the holders
of not less than 50% of such Class B Shares are present in person or by
proxy; and provided further, that the special class voting rights
provided for in this paragraph when the same shall have become vested
shall remain so vested until all accrued and unpaid dividends on such
Class B Shares then outstanding shall have been paid or declared and a
sum sufficient therefor set aside for payment, whereupon the holders of
such Class B 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 above
specified in this paragraph.
(2) In the event of default entitling holders of
Class B Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 Class B Shares upon which such default in the
payment of dividends exists 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 called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class B Shares. At any meeting at
which such holders of Class B Shares shall be entitled to
elect directors, holders of 50% of such Class B Shares,
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 such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
B Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class B Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation nor require
the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the
two directors elected by such holders of Class B
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Shares shall be elected annually for terms expiring at the
next succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class B Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class B Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares then entitled to vote shall be
combined (with class of shares having a number of votes proportional to
the aggregate liquidation preference of its outstanding shares). In
such case, the holders of Class B Shares and of all such other shares
then entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other shares have elected such
directors prior to the happening of the default or event permitting the
holders of Class B Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the
Secretary of the Corporation as required above, then a new election
shall be held with all such other shares and the Class B Shares voting
together as a single class for such directors, resulting in the
termination of the term of such previously elected directors upon the
election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class B Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class B Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class B Shares
or of any shares ranking on a parity with or junior to the
Class B Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class B Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such Class B
Shares.
(e) In the event, and only to the extent, that (1) Class B
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class B Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize,
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create or change the authorized or outstanding number of Class B Shares
or of any shares remaining on a parity with or junior to the Class B
Shares nor the amendment of the provisions of the Code of Regulations
so as to change the number of classification of directors of the
Corporation shall be deemed to affect adversely and materially
preferences or voting or other rights of the holders of such series.
Section 6. 9.44% Class B Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class B Shares, 177,500 shares are
designated as a series entitled "9.44% Class B Cumulative Redeemable
Preferred Shares" (hereinafter called "9.44% Class B Preferred
Shares"). The 9.44% Class B Preferred Shares shall have the express
terms set forth in this Item II as being applicable to all Class B
Shares as a class and, in addition, the following express terms
applicable to all 9.44% Class B Preferred Shares as a series of Class B
Shares:
(a) The annual dividend rate of the 9.44% Class B
Preferred Shares shall be 9.44% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 9.44% Class B Preferred Shares
shall be payable, if declared, quarterly on or about the 15th
day of March, June, September, and December each year, the
first quarterly dividend being payable, if declared, on March
15, 1996. The dividends payable for each full quarterly
dividend period on each 9.44% Class B Preferred Shares shall
be $5.90.
Dividends for the initial dividend period on the
9.44% Class B Preferred Shares, or for any period shorter or
longer than a full dividend period on the 9.44% Class B
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 9.44% Class B
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 9.44% Class B Preferred Shares shall
be cumulative as follows:
(1) With respect to shares included in the initial
issue of 9.44% Class B Preferred Shares and shares
issued any time thereafter up to and including the
record date for the payment of the first dividend on
the initial issue of 9.44% Class B Preferred Shares,
dividends shall be cumulative from the date of the
initial issue of 9.44% Class B Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative
from the dividend payment date next preceding the
date of issue of such shares, except that if such
shares are issued during the period commencing the
day after the record date for the payment of a
dividend on 9.44% Class B Preferred Shares and ending
on the payment date of that dividend, dividends with
respect to such shares shall be cumulative from that
dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 9.44% Class B Preferred
Shares may not be redeemed prior to December 26, 2000. At any
time or from time to time on and after December 26, 2000 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 9.44% Class B Preferred Shares at a redemption
price of $250.00 per share plus, in each case, an amount equal
to all dividends accrued and unpaid thereon to the redemption
date, without interest. The redemption price (other than the
portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital
shares of the Corporation, which may include any equity
securities (including common shares and preferred shares),
shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities), or
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options to purchase any of the foregoing.
(e) The amount payable per 9.44% Class B Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 9.44% Class B
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 9.44% Class B
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Item II, be deemed to be
made in respect of the earliest dividend period with respect
to which the Corporation is in default.
III. The Class C Cumulative Preferred Shares. The Class C Shares
shall have the following express terms:
Section 1. Series. The Class C Shares may be issued from time
to time in one or more series. All Class C Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class C Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class D Shares, the Class E Shares and
the Noncumulative Shares and shall be identical to all Class A Shares,
Class B Shares, Class D Shares, Class E Shares and Noncumulative Shares
except (1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Class A Shares, Class B Shares,
Class C Shares, Class D Shares and Class E Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5,
both inclusive, and Item VII of this Division, which provisions shall
apply to all Class C Shares, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b)
of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if
any, for the purchase or redemption of shares of the series;
(g) 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;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d)
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or 5(e) of this Item III) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class C Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class C Shares, shall be entitled to
receive out of any funds legally available therefor, and when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue and 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 shall be paid upon or
declared or set apart for any series of the Class C Shares for any
dividend period unless at the same time (i) a like proportionate
dividend for the dividend periods terminating on the same or any
earlier date, ratably in proportion to the respective annual dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class C Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class D Shares, Class
E Shares and Noncumulative Shares then issued and outstanding and
entitled to receive such dividends.
(b) So long as any Class C Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class C Shares, shall be paid or declared or any
distribution be made, except as aforesaid, in respect of the Common
Shares or any other shares ranking junior to the Class C Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
C Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class C Shares
received by the Corporation subsequent to the date of first issuance of
Class C Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item III.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class C Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares or Noncumulative Shares into Common Shares, or
(iii) the exercise by the Corporation of its rights pursuant to Item
VIII(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation, as amended, with respect to any other class or series of
capital stock hereafter created or authorized.
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(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code), any portion (the "Capital Gains Amount") of the dividends paid
or made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class C Shares shall be the amount that the total dividends paid or
made available to the holders of the Class C Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class C Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item III; and
(2) Shall, from time to time, make such redemptions
of each series of Class C 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
Item III; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class C Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than 30 days nor more than 60 days prior to
the date fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to Section 1
of this Item III prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of Class C
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
not less than $100,000,000, named in such notice and direct that there
be paid to the respective holders of the Class C Shares so to be
redeemed amounts equal to the redemption price of the Class C Shares so
to be redeemed, together with such accrued and unpaid dividends
thereon, on surrender of the share certificate or certificates held by
such holders; and upon the deposit of such notice in the mail and the
making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and
from and after the time such notice shall have been so deposited and
such deposit of money shall have been so made, such holders shall have
no rights or claim against the Corporation with respect to such shares,
except only the right to receive such money from such bank or trust
company without interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all of the
outstanding Class C Shares are to be redeemed, the Corporation shall
select by lot the shares so to be redeemed in such manner as shall be
prescribed by the Board of Directors.
(2) If the holders of Class C Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
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 Class C Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Class C Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles
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of Incorporation, as amended, with respect to any other class or series
of capital stock hereafter created or authorized, the Corporation may
not purchase or redeem (for sinking fund purposes or otherwise) less
than all of the Class C Shares then outstanding except in accordance
with a stock purchase offer made to all holders of record of Class C
Shares, unless all dividends on all Class C Shares then outstanding for
all previous and current dividend periods shall have been declared and
paid or funds therefor set apart and all accrued sinking fund
obligations applicable thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class C Shares of any series shall 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 the Common Shares or any other shares ranking
junior to the Class C Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item III, plus 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 the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative Shares in
proportion to the full preferential amount to which each such share is
entitled.
(2) After payment to the holders of Class C Shares of
the full preferential amounts as aforesaid, the holders of
Class C 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, the merger of any other Corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Class C Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class C Shares at
the time outstanding, whether or not earned or declared, for a number
of consecutive dividend payment periods which in the aggregate contain
at least 540 days, all holders of such Class C Shares, voting
separately as a class, together with all Class A Shares, Class B
Shares, Class D Shares, Class E Shares and Noncumulative Shares upon
which like voting rights have been conferred and are exercisable under
the circumstances described in Subsection 5(c), shall be entitled to
elect, as herein provided, a total of two members of the Board of
Directors of the Corporation; provided, however, that the holders of
such Class C Shares shall not exercise such special class voting rights
except at meetings of such shareholders for the election of directors
at which the holders of not less than 50% of such Class C Shares are
present in person or by proxy; and provided further, that the special
class voting rights provided for in this paragraph when the same shall
have become vested shall remain so vested until all accrued and unpaid
dividends on such Class C Shares then outstanding shall have been paid
or declared and a sum sufficient for the payment thereof set aside for
payment, whereupon the holders of such Class C 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 above specified in this paragraph. All dividend
payments made on the Class C Shares, at any time during which the
Corporation is in default in the payment of dividends on such Class C
Shares for any dividend period, shall be deemed to be made in respect
of the earliest dividend period with respect to which the Corporation
is in default.
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(2) In the event of default entitling holders of
Class C Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 Class C Shares upon which such default in the
payment of dividends exists 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 called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class C Shares. At any meeting at
which such holders of Class C Shares shall be entitled to
elect directors, holders of 50% of such Class C Shares,
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 such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
C Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class C Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class C Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class C Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class C Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class D
Shares, Class E Shares or Noncumulative Shares are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes
proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class C Shares and of all such
other shares then entitled so to vote, voting as a class, shall elect
such directors. If the holders of any such other shares have elected
such directors prior to the happening of the default or event
permitting the holders of Class C Shares to elect directors, or prior
to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class C
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class C Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of
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Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the
holders of Class C Shares which are set forth in these Amended
and Restated Articles of Incorporation, as amended; provided,
however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class
C Shares or of any shares ranking on a parity with or junior
to the Class C Shares nor the amendment of the provisions of
the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed
to affect adversely and materially preferences or voting or
other rights of the holders of Class C Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class C Shares.
(e) In the event, and only to the extent, that (1) Class C
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class C Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class C Shares or of any shares ranking on a parity with or junior to
the Class C Shares nor the Amendment of the provisions of the Code of
Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially
the preferences or voting or other rights of the holders of such
series.
IV. The Class D Cumulative Preferred Shares. The Class D Shares
shall have the following express terms:
Section 1. Series. The Class D Shares may be issued from time
to time in one or more series. All Class D Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class D Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class E Shares and
the Noncumulative Shares and shall be identical to all Class A Shares,
Class B Shares, Class C Shares, Class E Shares and Noncumulative Shares
except (1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Class A Shares, Class B Shares,
Class C Shares, Class D Shares and Class E Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5,
both inclusive, and Item VII of this Division, which provisions shall
apply to all Class D Shares, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b)
of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
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(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if
any, for the purchase or redemption of shares of the series;
(g) 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;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item IV) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class D Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class D Shares, shall be entitled to
receive out of any funds legally available therefor, and when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue and 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 shall be paid upon or
declared or set apart for any series of the Class D Shares for any
dividend period unless at the same time (i) a like proportionate
dividend for the dividend periods terminating on the same or any
earlier date, ratably in proportion to the respective annual dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class D Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date
(but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C Shares, Class
E Shares and Noncumulative Shares then issued and outstanding and
entitled to receive such dividends.
(b) So long as any Class D Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class D Shares, shall be paid or declared or any
distribution be made, except as aforesaid, in respect of the Common
Shares or any other shares ranking junior to the Class D Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
D Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class D Shares
received by the Corporation subsequent to the date of first issuance of
Class D Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares, including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then
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current dividend period shall have been declared and paid or a
sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item IV.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class D Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares or Noncumulative Shares into Common Shares, or
(iii) the exercise by the Corporation of its rights pursuant to Item
VIII(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation, as amended, with respect to any other class or series of
capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code), any portion (the "Capital Gains Amount") of the dividends paid
or made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class D Shares shall be the amount that the total dividends paid or
made available to the holders of the Class D Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class D Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item IV; and
(2) Shall, from time to time, make such redemptions
of each series of Class D 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
Item IV; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class D Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than 30 days nor more than 60 days prior to
the date fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to Section 1
of this Item IV prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price of Class D 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 not less than
$100,000,000, named in such notice and direct that there be paid to the
respective holders of the Class D Shares so to be redeemed amounts
equal to the redemption price of the Class D Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on surrender
of the share certificate or certificates held by such holders; and upon
the deposit of such notice in the mail and the making of such deposit
of money with such bank or trust company, such holders shall cease to
be shareholders with respect to such shares; and from and after the
time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim
against the Corporation with respect to such shares, except only the
right to receive such money from such bank or trust company without
interest or to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all
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of the outstanding Class D Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such manner as
shall be prescribed by the Board of Directors.
(2) If the holders of Class D Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
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 Class D Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Class D Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class D Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class D Shares, unless
all dividends on all Class D Shares then outstanding for all previous
and current dividend periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class D Shares of any series shall 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 the Common Shares or any other shares ranking
junior to the Class D Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item IV, plus 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 the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative Shares in
proportion to the full preferential amount to which each such share is
entitled.
(2) After payment to the holders of Class D Shares of
the full preferential amounts as aforesaid, the holders of
Class D 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, the merger of any other Corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Class D Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class D Shares at
the time outstanding, whether or not earned or declared, for a number
of consecutive dividend payment
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periods which in the aggregate contain at least 540 days, all holders
of such Class D Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class E Shares and
Noncumulative Shares upon which like voting rights have been conferred
and are exercisable under the circumstances described in Subsection
5(c), shall be entitled to elect, as herein provided, a total of two
members of the Board of Directors of the Corporation; provided,
however, that the holders of such Class D Shares shall not exercise
such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not
less than 50% of such Class D Shares are present in person or by proxy;
and provided further, that the special class voting rights provided for
in this paragraph when the same shall have become vested shall remain
so vested until all accrued and unpaid dividends on such Class D Shares
then outstanding shall have been paid or declared and a sum sufficient
for the payment thereof set aside for payment, whereupon the holders of
such Class D 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 above
specified in this paragraph. All dividend payments made on the Class D
Shares, at any time during which the Corporation is in default in the
payment of dividends on such Class D Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
(2) In the event of default entitling holders of
Class D Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 Class D Shares upon which such default in the
payment of dividends exists 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 called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class D Shares. At any meeting at
which such holders of Class D Shares shall be entitled to
elect directors, holders of 50% of such Class D Shares,
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 such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
D Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class D Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class D Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class D Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class D Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class E Shares or Noncumulative Shares are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A Shares, the
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Class B Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes
proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class D Shares and of all such
other shares then entitled so to vote, voting as a class, shall elect
such directors. If the holders of any such other shares have elected
such directors prior to the happening of the default or event
permitting the holders of Class D Shares to elect directors, or prior
to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class D
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class D Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class D Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class D Shares
or of any shares ranking on a parity with or junior to the
Class D Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class D Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class D Shares.
(e) In the event, and only to the extent, that (1) Class D
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class D Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and materially
the preferences or voting or other rights of the holders of such series
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of
Class D Shares or of any shares ranking on a parity with or junior to
the Class D Shares nor the Amendment of the provisions of the Code of
Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially
the preferences or voting or other rights of the holders of such
series.
V. The Class E Cumulative Preferred Shares. The Class E Shares
shall have the following express terms:
Section 1. Series. The Class E Shares may be issued from time
to time in one or more series. All Class E Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class E Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares and
the Noncumulative Shares and shall be identical to all Class A Shares,
Class B Shares,
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Class C Shares, Class D Shares and Noncumulative Shares except (1) in
respect of the matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this Section 1 and
(2) only dividends on Class A Shares, Class B Shares, Class C Shares,
Class D Shares and Class E Shares shall be cumulative as set forth
herein. Subject to the provisions of Sections 2 through 5, both
inclusive, and Item VII of this Division, which provisions shall apply
to all Class E Shares, the Board of Directors hereby is authorized to
cause such shares to be issued in one or more series and, with respect
to each such series to determine and fix prior to the issuance thereof
(and thereafter, to the extent provided in clause (b) of this Section)
the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if
any, for the purchase or redemption of shares of the series;
(g) 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;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item V) 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 Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class E Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Class E Shares, shall be entitled to
receive out of any funds legally available therefor, and when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue and 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 shall be paid upon or
declared or set apart for any series of the Class E Shares for any
dividend period unless at the same time (i) a like proportionate
dividend for the dividend periods terminating on the same or any
earlier date, ratably in proportion to the respective annual dividend
rates fixed therefor, shall have been paid upon or declared or set
apart for all Class E Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the
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dividends payable for the dividend periods terminating on the same or
any earlier date (but, with respect to Noncumulative Shares, only with
respect to the then current dividend period), ratably in proportion to
the respective dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class A Shares, Class B Shares, Class
C Shares, Class D Shares and Noncumulative Shares then issued and
outstanding and entitled to receive such dividends.
(b) So long as any Class E Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Class E Shares, shall be paid or declared or any
distribution be made, except as aforesaid, in respect of the Common
Shares or any other shares ranking junior to the Class E Shares, nor
shall any Common Shares or any other shares ranking junior to the Class
E Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class E Shares
received by the Corporation subsequent to the date of first issuance of
Class E Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares, including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item V.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Class E Shares shall be inapplicable to
(i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares or Noncumulative Shares into Common Shares, or
(iii) the exercise by the Corporation of its rights pursuant to Item
VIII(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation, as amended, with respect to any other class or series of
capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code), any portion (the "Capital Gains Amount") of the dividends paid
or made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Class E Shares shall be the amount that the total dividends paid or
made available to the holders of the Class E Shares for the year bears
to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class E Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item V; and
(2) Shall, from time to time, make such redemptions
of each series of Class E 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
Item V; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
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(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class E Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than 30 days nor more than 60 days prior to
the date fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to Section 1
of this Item V prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price of Class E 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 not less than
$100,000,000, named in such notice and direct that there be paid to the
respective holders of the Class E Shares so to be redeemed amounts
equal to the redemption price of the Class E Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on surrender
of the share certificate or certificates held by such holders; and upon
the deposit of such notice in the mail and the making of such deposit
of money with such bank or trust company, such holders shall cease to
be shareholders with respect to such shares; and from and after the
time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim
against the Corporation with respect to such shares, except only the
right to receive such money from such bank or trust company without
interest or to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the outstanding
Class E Shares are to be redeemed, the Corporation shall select by lot
the shares so to be redeemed in such manner as shall be prescribed by
the Board of Directors.
(2) If the holders of Class E Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
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 Class E Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Class E Shares without
serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) less than all of the
Class E Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class E Shares, unless
all dividends on all Class E Shares then outstanding for all previous
and current dividend periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class E Shares of any series shall 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 the Common Shares or any other shares ranking
junior to the Class E Shares, the amounts fixed with respect to shares
of such series in accordance with Section 1 of this Item V, plus 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 the event the net
assets of the Corporation legally available therefor are insufficient
to permit the payment upon all outstanding Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed
ratably upon all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and
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Noncumulative Shares in proportion to the full preferential amount to
which each such share is entitled.
(2) After payment to the holders of Class E Shares of
the full preferential amounts as aforesaid, the holders of
Class E 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, the merger of any other Corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Class E Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class E Shares at
the time outstanding, whether or not earned or declared, for a number
of consecutive dividend payment periods which in the aggregate contain
at least 540 days, all holders of such Class E Shares, voting
separately as a class, together with all Class A Shares, Class B
Shares, Class C Shares, Class D Shares and Noncumulative Shares upon
which like voting rights have been conferred and are exercisable under
the circumstances described in Subsection 5(c), shall be entitled to
elect, as herein provided, a total of two members of the Board of
Directors of the Corporation; provided, however, that the holders of
such Class E Shares shall not exercise such special class voting rights
except at meetings of such shareholders for the election of directors
at which the holders of not less than 50% of such Class E Shares are
present in person or by proxy; and provided further, that the special
class voting rights provided for in this paragraph when the same shall
have become vested shall remain so vested until all accrued and unpaid
dividends on such Class E Shares then outstanding shall have been paid
or declared and a sum sufficient for the payment thereof set aside for
payment, whereupon the holders of such Class E 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 above specified in this paragraph. All dividend
payments made on the Class E Shares, at any time during which the
Corporation is in default in the payment of dividends on such Class E
Shares for any dividend period, shall be deemed to be made in respect
of the earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling holders of
Class E Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 Class E Shares upon which such default in the
payment of dividends exists 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 called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class E Shares. At any meeting at
which such holders of Class E Shares shall be entitled to
elect directors, holders of 50% of such Class E Shares,
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 such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
E Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class E Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in
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the total number of or classifications of directors of the
Corporation or require the resignation of any director elected
otherwise than pursuant to this Subsection. Notwithstanding
any classification of the other directors of the Corporation,
the two directors elected by such holders of Class E Shares
shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class E Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class E Shares are
entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares or Noncumulative Shares are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes
proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class E Shares and of all such
other shares then entitled so to vote, voting as a class, shall elect
such directors. If the holders of any such other shares have elected
such directors prior to the happening of the default or event
permitting the holders of Class E Shares to elect directors, or prior
to a written request for the holding of a special meeting being
received by the Secretary of the Corporation as required above, then a
new election shall be held with all such other shares and the Class E
Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors
upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class E Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class E Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class E Shares
or of any shares ranking on a parity with or junior to the
Class E Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class E Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class E Shares.
(e) In the event, and only to the extent, that (1) Class E
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of capital stock to vote separately as a
class, the affirmative vote of the holders of at least two-thirds of
each series of Class E Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or
at a meeting called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended
and Restated Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which
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affects adversely and materially the preferences or voting or other
rights of the holders of such series which are set forth in these
Amended and Restated Articles of Incorporation, as amended; provided,
however, neither the amendment of these Amended and Restated Articles
of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class E Shares or of any shares
ranking on a parity with or junior to the Class E Shares nor the
Amendment of the provisions of the Code of Regulations so as to change
the number or classification of directors of the Corporation shall be
deemed to affect adversely and materially the preferences or voting or
other rights of the holders of such series.
VI. The Noncumulative Preferred Shares. The Noncumulative
Preferred Shares shall have the following express terms:
Section 1. Series. The Noncumulative Shares may be issued from
time to time in one or more series. All Noncumulative Shares shall be
of equal rank and shall be identical, except in respect of the matters
that may be fixed by the Board of Directors as hereinafter provided,
and each share of a series shall be identical with all other shares of
such series, except as to the dates on which and the periods for which
dividends may be payable. All Noncumulative Shares shall rank on a
parity with the Class A Shares, the Class B Shares, the Class C Shares,
the Class D Shares and the Class E Shares, and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares, except (1) in respect of the matters that may be fixed
by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on the
Noncumulative Shares are noncumulative as set forth herein. Subject to
the provisions of Sections 2 through 5, inclusive, and Item VII of this
Division, which provisions shall apply to all Noncumulative Shares, the
Board of Directors hereby is authorized to cause such shares to be
issued in one or more series, and with respect to each such series, to
determine and fix prior to the issuance thereof (and thereafter, to the
extent provided in clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The dates on which and the period or periods for
which dividends, if declared, shall be payable, including the
means by which such dates and periods may be established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if
any, for the purchase or redemption of shares of the series;
(g) 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;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item VI) 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
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Amended and Restated Articles of Incorporation, as amended, fixing, with respect
to each such series, the matters described in clauses (a) through (i), both
inclusive, of this Section and is authorized to take such actions with respect
thereto as may be required by law in order to effect such amendments.
Section 2. Dividends.
(a) The holders of Noncumulative Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Noncumulative Shares, shall be entitled to
receive out of any funds legally available therefor, if, when and as
declared by the Board of Directors, dividends in cash at the rate or
rates for such series fixed in accordance with the provisions of
Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue, in the case of shares of each
particular series, from and after the date or dates fixed with respect
to such series; provided, however, that if the Board of Directors fails
to declare a dividend payable on a dividend payment date on any
Noncumulative Shares, the holders of the Noncumulative Shares shall
have no right to receive a dividend in respect of the dividend period
ending on such dividend payment date, and the Corporation shall have no
obligation to pay the dividend accrued for such period, whether or not
dividends on such Noncumulative Shares are declared payable on any
future dividend payment date. No dividends shall be paid upon or
declared or set apart for any series of the Noncumulative Shares for
any dividend period unless at the same time (i) a like proportionate
dividend for the then current dividend period, ratably in proportion to
the respective annual dividend rates fixed therefor, shall have been
paid upon or declared or set apart for all Noncumulative Shares of all
series then issued and outstanding and entitled to receive such
dividend and (ii) the dividends payable for the dividend periods
terminating on the same or any earlier date, ratably in proportion to
the respective dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class A Shares, Class B Shares, Class
C Shares, Class D Shares and Class E Shares then issued and outstanding
and entitled to receive such dividends.
(b) So long as any Noncumulative Shares shall be outstanding
no dividend, except a dividend payable in Common Shares or other shares
ranking junior to the Noncumulative Shares, shall be paid or declared
or any distribution be made, except as aforesaid, in respect of the
Common Shares or any other shares ranking junior to the Noncumulative
Shares, nor shall any Common Shares or any other shares ranking junior
to the Noncumulative Shares be purchased, retired or otherwise acquired
by the Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to the
Noncumulative Shares received by the Corporation subsequent to the date
of first issuance of Noncumulative Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item VI.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption retirement or
other acquisition of, Common Shares or any other shares ranking on a
parity with or junior to the Noncumulative Shares shall be inapplicable
to (i) any payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares or Noncumulative Shares into Common Shares or
(iii) the exercise by the Corporation of its rights pursuant to Item
VIII(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation with respect to
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any other class or series of capital stock hereafter created or
authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Code), any portion (the "Capital Gains Amount") of the dividends paid
or made available for the year to holders of all classes of stock (the
"Total Dividends"), then, to the extent permissible under the Code and
to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion
of the Capital Gains Amount that shall be allocable to holders of the
Noncumulative Shares shall be the amount that the total dividends paid
or made available to the holders of the Noncumulative Shares for the
year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Noncumulative Shares at the time outstanding at the
applicable redemption price for such series fixed in
accordance with the provisions of Section 1 of this Item VI;
and
(2) Shall, from time to time, make such redemptions
of each series of Noncumulative 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 Item VI; and shall, in each case, pay all
unpaid dividends for the then current dividend period to the
redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Noncumulative Shares
to be redeemed at their respective addresses then appearing on the
books of the Corporation, not less than 30 days nor more than 60 days
prior to the date fixed for such redemption, or such other time prior
thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item VI prior to the issuance thereof. At any time
after notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of Noncumulative
Shares to be redeemed, together with accrued and unpaid dividends
thereon for the then current dividend period to the redemption date,
with any bank or trust company in Cleveland, Ohio, or New York, New
York, having capital and surplus of not less than $100,000,000, named
in such notice and direct that there be paid to the respective holders
of the Noncumulative Shares so to be redeemed amounts equal to the
redemption price of the Noncumulative Shares so to be redeemed together
with such accrued and unpaid dividends thereon for the then current
dividend period, on surrender of the share certificate or certificates
held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust
company, such holders shall cease to be shareholders with respect to
such shares; and from and after the time such notice shall have been so
deposited and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation with
respect to such shares, except only the right to receive such money
from such bank or trust company without interest or to exercise before
the redemption date any unexpired privileges of conversion. In the
event less than all of the outstanding Noncumulative Shares are to be
redeemed, the Corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Noncumulative Shares which have
been called for redemption shall not within six years after
such deposit claim the amount deposited for the redemption
thereof, 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 Noncumulative Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the Corporation, shall
resume the status of authorized but unissued Noncumulative Shares
without serial designation.
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(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of this
Division A, Section 4(d) of Division B or any similar Section hereafter
contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock
hereafter created or authorized, the Corporation may not purchase or
redeem (for sinking fund purposes or otherwise) of less than all of the
Noncumulative Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Noncumulative Shares,
unless all dividends on all Noncumulative Shares then outstanding for
the then current dividend period shall have been declared and paid or
funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Noncumulative Shares of any series shall 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 the Common Shares or any other shares ranking
junior to the Noncumulative Shares, the amounts fixed with respect to
shares of such series in accordance with Section 1 of this Item VI,
plus an amount equal to all dividends accrued and unpaid thereon for
the then current dividend period to the date of payment of the amount
due pursuant to such liquidation, dissolution or winding up of the
affairs of the Corporation. In the event the net assets of the
Corporation legally available therefor are insufficient to permit the
payment upon all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative Shares of the
full preferential amount to which they are respectively entitled, then
such net assets shall be distributed ratably upon all outstanding
Noncumulative Shares in proportion to the full preferential amount to
which each such share is entitled.
(2) After payment to the holders of Noncumulative
Shares of the full preferential amounts as aforesaid, the
holders of Noncumulative 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, the merger of any other Corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Noncumulative Shares shall have no voting
rights, except as provided in this Section or required by law.
(b)(1) If, and so often as, the Corporation shall not have
fully paid, or shall not have declared and set aside a sum sufficient
for the payment of, dividends on any series of Noncumulative Shares at
the time outstanding, for a number of consecutive dividend payment
periods which in the aggregate contain at least 540 days, the holders
of such Noncumulative Shares, voting separately as a class, together
with all Class A Shares, Class B Shares, Class C Shares, Class D Shares
and Class E Shares upon which like voting rights have been conferred
and are exercisable, shall be entitled to elect, as herein provided,
two members of the Board of Directors of the Corporation; provided,
however, that the holders of such Noncumulative Shares shall not
exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not
less than 50% of such Noncumulative Shares are present in person or by
proxy; and provided further, that the special class voting rights
provided for in this paragraph when the same shall have become vested
shall remain so vested until the Corporation shall have fully paid, or
shall have set aside a sum sufficient for the payment of, dividends on
such Noncumulative Shares then outstanding for a number of consecutive
dividend payment periods which in the aggregate contain at least 360
days, whereupon the holders of such Noncumulative 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 above specified in this paragraph.
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(2) In the event of default entitling holders of
Noncumulative Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders 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 Noncumulative Shares upon which such default
in the payment of dividends exists 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 called to be
held within 90 days after the date of receipt of the foregoing
written request from the holders of Noncumulative Shares. At
any meeting at which such holders of Noncumulative Shares
shall be entitled to elect directors, holders of 50% of such
Noncumulative Shares, 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 such a quorum shall be sufficient to
elect the members of the Board of Directors which such holders
of Noncumulative Shares are entitled to elect as herein
provided. Notwithstanding any provision of these Amended and
Restated Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Noncumulative Shares pursuant to this
Subsection shall serve in addition to any other directors then
in office or proposed to be elected otherwise than pursuant to
this Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation nor require
the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the
two directors elected by such holders of Noncumulative Shares
shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Noncumulative Shares in respect
of elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Noncumulative Shares
are entitled to elect directors pursuant to the foregoing provisions of
this Section the holders of any Class A Shares, Class B Shares, Class C
Shares, Class D Shares and Class E Shares, are entitled to elect
directors pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the Class E
Shares and Noncumulative Shares then entitled to vote shall be combined
(with class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such
case, the holders of Noncumulative Shares and of all such other shares
then entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other shares have elected such
directors prior to the happening of the default or event permitting the
holders of Noncumulative Shares to elect directors, or prior to a
written request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new election
shall be held with all such other shares and the Noncumulative Shares
voting together as a single class for such directors, resulting in the
termination of the term of such previously elected directors upon the
election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Noncumulative Shares at the time outstanding, voting separately
as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect either of
the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and
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Restated Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the
holders of Noncumulative Shares which are set forth in these
Amended and Restated Articles of Incorporation, as amended;
provided, however, neither the amendment of these Amended and
Restated Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or outstanding
number of Noncumulative Shares or of any shares ranking on a
parity with or junior to the Noncumulative Shares nor the
amendment of the provisions of the Code of Regulations so as
to change the number or classification of directors of the
Corporation shall be deemed to affect adversely and materially
preferences or voting or other rights of the holders of
Noncumulative Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such
Noncumulative Shares.
(e) In the event, and only to the extent, that (1)
Noncumulative Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital stock to vote
separately as a class, the affirmative vote of the holders of at least
two-thirds of each series of the Noncumulative Shares at the time
outstanding, voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose of voting on
such matters, shall be required for any amendment, alteration or
repeal, whether by merger, consolidation or otherwise, of any of the
provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects
adversely and materially the preferences or voting or other rights of
the holders of such series which are set forth in these Amended and
Restated Articles of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Noncumulative Shares or of any
shares remaining on a parity with or junior to the Noncumulative Shares
nor the amendment of the provisions of the Code of Regulations so as to
change the number or classification of directors of the Corporation
shall be deemed to affect adversely and materially preferences or
voting or other rights of the holder of such series.
VII. Definitions. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to"
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares or Noncumulative 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 Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares or Noncumulative Shares, as the
case may be;
(b) Whenever reference is made to shares "on a parity with"
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares or Noncumulative 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 rank equally (except as to
the amounts fixed therefor) with the rights of the holders of Class A
Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares
or Noncumulative Shares, as the case may be; and
(c) Whenever reference is made to shares "ranking junior to"
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares or Noncumulative Shares, such reference shall mean and include
all shares of the Corporation other than those defined under
Subsections (a) and (b) of this Section as shares "ranking prior to" or
"on a parity with" Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares, as the case may
be.
VIII. Restrictions on Transfer to Preserve Tax Benefit; Shares Subject
to Redemption.
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(a) Definitions. For the purposes of this Item VIII of this
Division A of this Article FOURTH, the following terms shall have the
following meanings:
"Beneficial Ownership" shall mean ownership of Preferred
Shares by a Person who would be treated as an owner of such Preferred
Shares either directly or constructively through the application of
Section 544 of the Code, as modified by Section 856(h) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Constructive Ownership" shall mean ownership of Preferred
Shares by a Person who would be treated as an owner of such Preferred
Shares either directly or constructively through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code.
The terms "Constructive Owner," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
"Excess Preferred Shares" shall mean any Preferred Shares (i)
acquired or proposed to be acquired by any Person pursuant to a
Transfer to the extent that, if effective, such Transfer would result
in the transferee either Beneficially Owning Preferred Shares or
Constructively Owning Preferred Shares in excess of the Ownership
Limit, or (ii) which are the subject of a Transfer that, if effective,
which would result in the Corporation being "closely held" within the
meaning of Section 856(h) of the Code.
"Market Price" shall mean, with respect to any series of any
class of Preferred Shares, the last reported sales price of such series
reported on the New York Stock Exchange on the trading day immediately
preceding the relevant date or, if shares of such series are not then
traded on the New York Stock Exchange, the last reported sales price of
shares of such series on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over
which the shares of such series may be traded, or if shares of such
series are not then traded over any exchange or quotation system, then
the market price of shares of such series on the relevant date as
determined in good faith by the Board of Directors of the Corporation.
"Ownership Limit" shall mean, with respect to each series of
each class of Preferred Shares, 9.8% of the outstanding shares of such
series.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c)
of the Code, an association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other entity or a
group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; provided, however, that a
"person" does not mean an underwriter which participates in a public
offering of Preferred Shares, for a period of 35 days following the
purchase by such underwriter of such Preferred Shares.
"Preferred Shares" shall mean, collectively, Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Preferred Shares (including, without
limitation, (i) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of Preferred
Shares or (ii) the sale, transfer, assignment or other disposition of
any securities or rights convertible into or exchangeable for Preferred
Shares), whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section (i) of this Item
VIII of this Division A of this Article FOURTH, no Person
shall Beneficially Own or
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Constructively Own shares of any series of any class of
Preferred Shares in excess of the Ownership Limit applicable
to such series.
(ii) Except as provided in Section (i) of this Item
VIII of this Division A of this Article FOURTH, any Transfer
that, if effective, would result in any Person Beneficially
Owning shares of any series of any class of Preferred Shares
in excess of the Ownership Limit applicable to such series
shall be void ab initio as to the Transfer of such Preferred
Shares which would be otherwise Beneficially Owned by such
Person in excess of such Ownership Limit, and the intended
transferee shall acquire no rights in such Preferred Shares.
(iii) Except as provided in Section (i) of this Item
VIII of this Division A of this Article FOURTH, any Transfer
that, if effective, would result in any Person Constructively
Owning shares of any series of any class of Preferred Shares
in excess of the Ownership Limit applicable to such series
shall be void ab initio as to the Transfer of such Preferred
Shares which would be otherwise Constructively Owned by such
Person in excess of such amount, and the intended transferee
shall acquire no rights in such Preferred Shares.
(iv) Notwithstanding any other provisions contained
in this Item VIII, any Transfer (whether or not such Transfer
is the result of a transaction entered into through the
facilities of the New York Stock Exchange) or other event
that, if effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h) of the
Code, or would otherwise result in the Corporation failing to
qualify as a REIT (including, but not limited to, a Transfer
or other event that would result in the Corporation owning
(directly or Constructively) an interest in a tenant that is
described in Section 856(d)(2)(B) of the Code if the income
derived by the Corporation from such tenant would cause the
Corporation to fail to satisfy any of the gross income
requirement of Section 856(c) of the Code) shall be void ab
initio as to the Transfer of the Preferred Shares or other
event which would cause the Corporation to be "closely held"
within the meaning of Section 856(h) of the Code or would
otherwise result in the Corporation failing to qualify as a
REIT; and the intended transferee or owner or Constructive or
Beneficial Owner shall acquire or retain no rights in such
Preferred Shares.
(v) For purposes of construing the foregoing
provisions, any attempt to transfer Preferred Shares in
violation of the Ownership Limit applicable to the series of
the class of such Preferred Shares (as such Ownership Limit
may be modified by the Board of Directors pursuant to Section
(h) of Item VIII) shall be construed as causing such Preferred
Shares to be transferred by operation of law to the
Corporation as trustee of a trust for the exclusive benefit of
the person or persons to whom such Preferred Shares can
ultimately be transferred without violating the Ownership
Limit and any Excess Preferred Shares while held in such trust
shall not have any voting rights, shall not be considered for
purposes of any shareholder vote or for determining a quorum
for such a vote, and shall not be entitled to any dividends or
other distributions.
(c) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a Transfer has
taken place in violation of Section (b) of Item VIII of this Division A
of this Article FOURTH or that a Person intends to acquire or has
attempted to acquire beneficial ownership (determined without reference
to any rules of attribution), Beneficial Ownership or Constructive
Ownership of any Preferred Shares of the Corporation in violation of
Section (b) of Item VIII of this Division A of this Article FOURTH, or
that any such Transfer, intended or attempted acquisition or
acquisition would jeopardize the status of the Corporation as a REIT
under the Code, the Board of Directors or its designees shall take such
actions as it deems advisable to refuse to give effect or to prevent
such Transfer, including, but not limited to, refusing to give effect
to such Transfer on the books of the Corporation or instituting
proceedings to enjoin such Transfer and, in addition, exercising its
rights under Section (d) of Item VIII of this Division A of Article
FOURTH.
(d) Purchase Right in Excess Preferred Shares. Beginning on
the date of the occurrence of a Transfer which, if consummated, in the
good faith judgment of
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the Board of Directors of the Corporation, could result in Excess
Preferred Shares the Excess Preferred Shares, subject to such transfer
shall be deemed to have been offered for sale to the Corporation, or
its designee, at a price per share equal to the lesser of (i) the price
per share in the transaction that created such Excess Preferred Shares
(or, in the case of a devise or gift, the Market Price at the time of
such devise or gift) and (ii) the Market Price on the date the
Corporation, or its designee, accepts such offer. The Corporation shall
have the right to accept such offer for a period of 90 days after the
later of (i) the date of such Transfer and (ii) if the Corporation does
not receive a notice of such Transfer pursuant to Section (e) of Item
VIII of this Division A of this Article FOURTH, the date the Board of
Directors determines in good faith that such Transfer has occurred.
Prompt payment of the purchase price shall be made in such reasonable
manner as may be determined by the Corporation. From and after the date
fixed for purchase by the Corporation, and so long as payment of the
purchase price for the Excess Preferred Shares to be so purchased shall
have been made or duly provided for, the holder of any Excess Preferred
Shares so called for purchase shall cease to be entitled to dividends,
distributions, voting rights and other benefits with respect to such
Excess Preferred Shares, excepting only the right to payment of the
purchase price fixed as aforesaid. Any dividend or distribution paid to
a proposed transferee of Excess Preferred Shares prior to the discovery
by the Corporation that the Excess Preferred Shares have been
transferred in violation of Section (b) of Item VIII of this Division A
of this Article FOURTH shall be repaid to the Corporation upon demand.
If the foregoing provisions are determined to be void or invalid by
virtue of any legal decision, statute, rule or regulation, then the
intended transferee of such Excess Preferred Shares shall be deemed, at
the option of the Corporation, to have acted as agent on behalf of the
Corporation in acquiring such Excess Preferred Shares and to hold such
Excess Preferred Shares on behalf of the Corporation.
(e) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire Preferred Shares or other securities in violation
of subparagraph (b) of this Item VIII, or any Person who owns or will
own Excess Preferred Shares as a result of an event under subparagraph
(b) of this Item VIII, shall immediately give written notice to the
Corporation of such event and shall provide to the Corporation such
other information as the Corporation may request in order to determine
the effect, if any, of such Transfer or attempted Transfer or other
event on the Corporation's status as a REIT.
(f) Owners Required to Provide Information. From and after
the date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0% (or such
other percentage, between 0.5% and 5.0%, as provided in the
regulations promulgated pursuant to the Code) of the
outstanding Preferred Shares of the Corporation shall, within
30 days after January 1 of each year, give written notice to
the Corporation stating the name and address of such
Beneficial Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such Beneficial
Owner shall provide to the Corporation such additional
information as the Corporation may request in order to
determine the effect, if any, of such Beneficial Ownership on
the Corporation's status as a REIT.
(ii) each Person who is a Beneficial Owner or
Constructive Owner of Preferred Shares and each Person
(including the shareholder of record) who is holding Preferred
Shares for a Beneficial Owner or Constructive Owner shall
provide to the Corporation such information that the
Corporation may request, in good faith, in order to determine
the Corporation's status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Division A
of this Article FOURTH shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable
to protect the Corporation and the interests of its shareholders by
preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of Item VIII of this Division A of this
Article FOURTH, including any definition contained in Section (a) of
Item VIII, the Board of Directors shall have the power to determine the
application of the provisions of this Item VIII
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with respect to any situation based on the facts known to it.
(i) Exceptions.
(i) Subject to Section (b)(iv) of this Item VIII of
this Division A, the Board of Directors may exempt a Person
from the Ownership Limit applicable to a series of a class of
Preferred Shares if such Person is not an individual (other
than pension plans described in Section 856(h)(3)) for
purposes of Section 542(a)(2) of the Code if the Board of
Directors obtains such representations and undertakings from
such Person as are reasonably necessary to ascertain that no
individual's Beneficial Ownership of such Preferred Shares
will violate the Ownership Limit, and agrees that any
violation or attempted violation will result in such Preferred
Shares in excess of the Ownership Limit being subject to
repurchase by the Corporation as set forth in Section (d) of
Item VIII of this Division A of this Article FOURTH.
(ii) The Board of Directors may exempt a Person from
the limitation on such Person Constructively Owning Preferred
Shares in excess of the Ownership Limit applicable to a series
of a class of such Preferred Shares if such Person does not
own and represents that it will not own, directly or
constructively (by virtue of the application of Section 318 of
the Code, as modified by Section 856(d)(5) of the Code), more
than a 9.8% interest (as set forth in Section 856(d)(2)(B)) in
a tenant of any real property owned or leased by the
Corporation, if the Board of Directors obtains such
representations and undertakings from such Person as are
reasonably necessary to ascertain this fact and agrees that
any violation or attempted violation will result in such
Preferred Shares in excess of the Ownership Limit being deemed
to be Excess Preferred Shares and subject to repurchase by the
Corporation as set forth in Section (d) of Item VIII of this
Division A of this Article FOURTH.
IX. Legend. Each certificate for Preferred Shares shall bear the
following legend:
"The Preferred Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own or Constructively Own shares of
any series of any class of Preferred Shares in excess of 9.8% of the outstanding
Preferred Shares of such series. Any Person who attempts to Beneficially Own or
Constructively Own shares of any series of any class of Preferred Shares in
excess of the above limitations must immediately notify the Corporation. All
capitalized terms in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Preferred Shares
represented hereby may be subject to repurchase by the Corporation on the terms
and conditions set forth in the Corporation's Articles of Incorporation.
DIVISION B
Subject to the terms of the Class A Cumulative Preferred Shares, the
Class B Cumulative Preferred Shares, the Class C Cumulative Preferred Shares,
the Class D Cumulative Preferred Shares, the Class E Cumulative Preferred Shares
and the Noncumulative Preferred Shares, the Common Shares shall have the
following express terms:
Section 1. Dividend Rights. The holders of Common Shares shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Corporation, out of the assets of the Corporation which are by law available
therefor, dividends or distributions payable in cash, in property or in
securities of the Corporation.
Section 2. Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution of
the assets of, the Corporation, each holder of Common Shares shall be entitled
to receive, ratably with each other holder of Common Shares, that portion of the
assets of the Corporation available for distribution to its shareholders as the
number of Common Shares held by such holder bears to the total number of Common
Shares then outstanding.
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Section 3. Voting Rights. The holders of Common Shares shall be
entitled to vote on all matters (for which holders of Common Shares shall be
entitled to vote thereon) at all meetings of the shareholders of the
Corporation, and shall be entitled to one vote for each Common Share entitled to
vote at such meeting.
Section 4. Restrictions on Transfer to Preserve Tax Benefit; Common
Shares Subject to Redemption.
(a) Definitions. For the purposes of this Section 4 of this
Division B of this Article FOURTH, the following terms shall have the
following meanings:
"Beneficial Ownership" shall mean ownership of Common Shares
by a Person who would be treated as an owner of such Common Shares
either directly or constructively through the application of Section
544 of the Code, as modified by Section 856(h)(1)(B) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Constructive Ownership" shall mean ownership of Common Shares
by a Person who would be treated as an owner of such Common Shares
either directly or Constructively through the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code. The
terms "Constructive Owner," "Constructively Owns" and "Constructively
Owned" shall have the correlative meanings.
"Excess Shares" shall mean any Common Shares (i) acquired or
proposed to be acquired by any Person (other than an Existing Holder)
pursuant to a Transfer to the extent that, if effective, such Transfer
would result in the transferee either (A) Beneficially Owning Common
Shares in excess of the Ownership Limit or (B) Constructively Owning
Common Shares in excess of the Related Party Limit, (ii) acquired or
proposed to be acquired by an Existing Holder pursuant to a Transfer to
the extent that, if effective, such Transfer would result in such
Existing Holder Beneficially Owning Common Shares in excess of the
Existing Holder Limit for such Existing Holder, or (iii) which are the
subject of a Transfer that, if effective, which would result in (A) the
Common Shares being owned by fewer than 100 Persons (determined without
reference to any rules of attribution), or (B) the Corporation being
"closely held" within the meaning of Section 856(h) of the Code.
"Existing Holder" shall mean (i) Bert L. Wolstein, (ii) Scott
A. Wolstein, (iii) James A. Schoff, and (iv) any Person to whom an
Existing Holder Transfers Beneficial Ownership of Common Shares causing
such transferee to Beneficially Own Common Shares in excess of the
Ownership Limit.
"Existing Holder Limit" (i) for any Existing Holder who is an
Existing Holder by virtue of clause (i), (ii) or (iii) of the
definition thereof, shall mean, initially, the percentage of the
outstanding Common Shares Beneficially Owned by such Existing Holder
upon the consummation of the Initial Public Offering, and after any
adjustment pursuant to Section (4)(i) of this Division B of this
Article FOURTH, shall mean such percentage of the outstanding Common
Shares as so adjusted; and (ii) for any Existing Holder who becomes an
Existing Holder by virtue of clause (iv) of the definition thereof,
shall mean, initially, the percentage of the outstanding Common Shares
Beneficially Owned by such Existing Holder at the time that such
Existing Holder becomes an Existing Holder, and after any adjustment
pursuant to Section 4(i) of this Division B of this Article FOURTH,
shall mean such percentage of the outstanding Common Shares as so
adjusted. From and after the date of the Initial Public Offering, the
secretary of the Corporation shall maintain and, upon request, make
available to each Existing Holder, a schedule which sets forth the then
current Existing Holder Limits for each Existing Holder.
"Initial Public Offering" means the sale of Common Shares
pursuant to the Corporation's first effective registration statement
for such Common Shares filed under the Securities Act of 1933, as
amended.
"Market Price" shall mean the last reported sales price of
Common Shares reported on the New York Stock Exchange on the trading
day immediately preceding the relevant date or, if the Common Shares
are not then traded on the New York Stock Exchange, the last reported
sales price of the Common Shares on the trading day immediately
preceding the relevant date as reported on any exchange or
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quotation system over which the Common Shares may be traded, or if the
Common Shares are not then traded over any exchange or quotation
system, then the market price of the Common Shares on the relevant date
as determined in good faith by the Board of Directors of the
Corporation.
"Ownership Limit" shall mean 5.0% of the outstanding Common
Shares of the Corporation.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c)
of the Code, an association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other entity or a
group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; provided, however, that a
"Person" does not mean an underwriter which participates in a public
offering of the Common Shares, for a period of 35 days following the
purchase by such underwriter of the Common Shares.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
"Related Party Limit" shall mean 9.8% of the outstanding
Common Shares of the Corporation.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Common Shares (including, without
limitation, (i) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of Common Shares
or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Common
Shares), whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, no Person (other than an Existing
Holder) shall Beneficially Own Common Shares in excess of the
Ownership Limit and no Existing Holder shall Beneficially Own
Common Shares in excess of the Existing Holder Limit for such
Existing Holder.
(ii) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that, if effective,
would result in any Person (other than an Existing Holder)
Beneficially Owning Common Shares in excess of the Ownership
Limit shall be void ab initio as to the Transfer of such
Common Shares which would be otherwise Beneficially Owned by
such Person in excess of the Ownership Limit, and the intended
transferee shall acquire no rights in such Common Shares.
(iii) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that, if effective,
would result in any Existing Holder Beneficially Owning Common
Shares in excess of the applicable Existing Holder Limit shall
be void ab initio as to the Transfer of such Common Shares
which would be otherwise Beneficially Owned by such Existing
Holder in excess of the applicable Existing Holder Limit, and
such Existing Holder shall acquire no rights in such Common
Shares.
(iv) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that, if effective,
would result in any Person Constructively Owning Common Shares
in excess of the Related Party Limit shall be void ab initio
as to the Transfer of such Common Shares which would be
otherwise Constructively Owned by such Person in excess of
such amount, and the intended transferee shall acquire no
rights in such Common Shares.
(v) Except as provided in Section 4(i) of this
Division B of this
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Article FOURTH, from and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in the
Common Shares being beneficially owned by less than 100
Persons (determined without reference to any rules of
attribution) shall be void ab initio as to the Transfer of
such Common Shares which would be otherwise beneficially owned
by the transferee, and the intended transferee shall acquire
no rights in such Common Shares.
(vi) From and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in the
Corporation being "closely held" within the meaning of Section
856(h) of the Code shall be void ab initio as to the Transfer
of the Common Shares which would cause the Corporation to be
"closely held" within the meaning of Section 856(h) of the
Code, and the intended transferee shall acquire no rights in
such Common Shares.
(c) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a Transfer has
taken place in violation of Section 4(b) of this Division B of this
Article FOURTH or that a Person intends to acquire or has attempted to
acquire beneficial ownership (determined without reference to any rules
of attribution), Beneficial Ownership or Constructive Ownership of any
Common Shares of the Corporation in violation of Section 4(b) of this
Division B of this Article FOURTH, or that any such Transfer, intended
or attempted acquisition or acquisition would jeopardize the status of
the Corporation as a REIT under the Code, the Board of Directors or its
designees shall take such actions as it deems advisable to refuse to
give effect or to prevent such Transfer, including, but not limited to,
refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer and, in
addition, exercising its rights under Section 4(d) of this Division B
of this Article FOURTH.
(d) Purchase Right in Excess Shares. Beginning on the date of
the occurrence of a Transfer which, if consummated, in the good faith
judgment of the Board of Directors of the Corporation, could result in
Excess Shares, such Excess Shares shall be deemed to have been offered
for sale to the Corporation, or its designee, at a price per share
equal to the lesser of (i) the price per share in the transaction that
created such Excess Shares (or, in the case of a devise or gift, the
Market Price at the time of such devise or gift) and (ii) the Market
Price on the date the Corporation, or its designee, accepts such offer.
The Corporation shall have the right to accept such offer for a period
of ninety days after the later of (i) the date of such Transfer and
(ii) if the Corporation does not receive a notice of such Transfer
pursuant to Section 4(e) of this Division B of this Article FOURTH, the
date the Board of Directors determines in good faith that such Transfer
has occurred. Prompt payment of the purchase price shall be made in
such reasonable manner as may be determined by the Corporation. From
and after the date fixed for purchase by the Corporation, and so long
as payment of the purchase price for the Excess Shares to be so
purchased shall have been made or duly provided for, the holder of any
Excess Shares so called for purchase shall cease to be entitled to
dividends, distributions, voting rights and other benefits with respect
to such Excess Shares, excepting only the right to payment of the
purchase price fixed as aforesaid. Any dividend or distribution paid to
a proposed transferee of Excess Shares prior to the discovery by the
Corporation that the Excess Shares have been transferred in violation
of Section 4(b) of this Division B of this Article FOURTH shall be
repaid to the Corporation upon demand. If the foregoing provisions are
determined to be void or invalid by virtue of any legal decision,
statute, rule or regulation, then the intended transferee of such
Excess Shares shall be deemed, at the option of the Corporation, to
have acted as agent on behalf of the Corporation in acquiring such
Excess Shares and to hold such Excess Shares on behalf of the
Corporation.
(e) Notice of Restricted Transfer. Any Person who acquires or
intends to acquire shares in violation of Section 4(b) of this Division
B of this Article FOURTH or any Person who is a transferee of Excess
Shares shall immediately give written notice to the Corporation of such
event and shall provide to the Corporation such other information as
the Corporation may request in order to determine the effect, if any,
of such Transfer or intended Transfer on the Corporation's status as a
REIT.
(f) Owners Required to Provide Information. From and after
the date of the
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Initial Public Offering:
(i) every Beneficial Owner of more than 5.0% (or such
other percentage, between 0.5% and 5.0%, as provided in the
regulations promulgated pursuant to the Code) of the
outstanding Common Shares of the Corporation shall, within 30
days after January 1 of each year, give written notice to the
Corporation stating the name and address of such Beneficial
Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such Beneficial
Owner shall provide to the Corporation such additional
information as the Corporation may request in order to
determine the effect, if any, of such Beneficial Ownership on
the Corporation's status as a REIT.
(ii) each Person who is a Beneficial Owner or
Constructive Owner of Common Shares and each Person (including
the shareholder of record) who is holding Common Shares for a
Beneficial Owner or Constructive Owner shall provide to the
Corporation such information that the Corporation may request,
in good faith, in order to determine the Corporation's status
as a REIT.
(g) Remedies Not Limited. Nothing contained in this Division B
of this Article FOURTH shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable
to protect the Corporation and the interests of its shareholders by
preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of Section 4 of this Division B of this
Article FOURTH, including any definition contained in Section 4(a), the
Board of Directors shall have the power to determine the application of
the provisions of this Section 4 with respect to any situation based on
the facts known to it.
(i) Modification of Existing Holder Limits. Subject to the
provisions of Section 4(k) of this Division B, the Existing Holder
Limits may be modified as follows:
(i) Subject to the limitations provided in Section
4(k), any Existing Holder may Transfer Common Shares to a
Person who is already an Existing Holder up to the number of
Common Shares Beneficially Owned by such transferor Existing
Holder in excess of the Ownership Limit. Any such Transfer
will decrease the Existing Holder Limit for such transferor
Existing Holder and increase the Existing Holder Limit for
such transferee Existing Holder by the percentage of the
outstanding Common Shares so Transferred. The transferor
Existing Holder shall give the Board of Directors of the
Corporation prior written notice of any such Transfer.
(ii) Any grant of a stock option pursuant to a stock
option plan approved by the shareholders of the Corporation
shall increase the Existing Holder Limit for the affected
Existing Holder to the maximum extent possible under Section
4(k) to permit the Beneficial Ownership of the Common Shares
issuable upon the exercise of such stock option.
(iii) The Board of Directors may reduce the Existing
Holder Limit for any Existing Holder, with the written consent
of such Existing Holder, after any Transfer permitted in this
Section 4 by such Existing Holder to a Person other than an
Existing Holder or after the lapse (without exercise) of a
stock option described in Section 4(i)(ii).
(iv) Any Common Shares issued to an Existing Holder
pursuant to a dividend reinvestment plan adopted by the
Corporation shall increase the Existing Holder Limit for the
Existing Holder to the maximum extent possible under Section
4(k) to permit the Beneficial Ownership of such Common Shares.
(j) Modification of Ownership Limit. Subject to the
limitations provided in Section 4(k) of this Division B, the Board of
Directors may from time to time increase the Ownership Limit.
(k) Limitations on Modifications. Notwithstanding any other
provision of this Division B of this Article FOURTH:
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(i) Neither the Ownership Limit nor any Existing
Holder Limit may be increased (nor may any additional Existing
Holder Limit be created) if, after giving effect to such
increase (or creation), five Beneficial Owners of Common
Shares (including all of the then Existing Holders) could
Beneficially Own, in the aggregate, more than 49.6% of the
outstanding Common Shares.
(ii) Prior to the modification of any Existing Holder
Limit or Ownership Limit pursuant to Section 4(i) or Section
4(j) of this Division B of this Article FOURTH, the Board of
Directors of the Corporation may require such opinions of
counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the
Corporation's status as a REIT.
(iii) No Existing Holder Limit shall be reduced to a
percentage which is less than the Ownership Limit.
(iv) The Ownership Limit may not be increased to a
percentage which is greater than 9.8%.
(v) The Related Party Limit may not be increased to a
percentage which is greater than 9.8%.
(l) Exceptions.
(i) The Board of Directors, with a ruling from the
Internal Revenue Service or an opinion of counsel, may exempt
a Person from the Ownership Limits or the Existing Holder
Limits, as the case may be, if such Person is not an
individual for purposes of Section 542(a)(2) of the Code and
the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to
ascertain that no individual's Beneficial Ownership of such
Common Shares will violate the Ownership Limit or the
applicable Existing Holder Limit, as the case may be, and
agrees that any violation or attempted violation will result
in such Common Shares in excess of 5.0% of the outstanding
Common Shares being deemed to be Excess Shares and subject to
repurchase by the Corporation as set forth in Section 4(d) of
this Division B of this Article FOURTH.
(ii) The Board of Directors, with a ruling from the
Internal Revenue Service or an opinion of counsel, may exempt
a Person from the limitation on such Person Constructively
Owning Common Shares in excess of the Related Party Limit if
such Person does not own and represents that it will not own,
directly or constructively (by virtue of the application of
Section 318 of the Code, as modified by Section 856(d)(5) of
the Code), more than a 9.9% interest (as set forth in Section
856(d)(2)(B) in a tenant of any real property owned or leased
by the Corporation, and the Corporation obtains such
representations and undertakings from such Person as are
reasonably necessary to ascertain this fact and agrees that
any violation or attempted violation will result in such
Common Shares in excess of 9.8% being deemed to be Excess
Shares and subject to repurchase by the Corporation as set
forth in Section 4(d) of this Division B of this Article
FOURTH.
Section 5. Legend. Each certificate for Common Shares shall bear the
following legend:
"The Common Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own Common Shares in excess of 5.0% of
the outstanding Common Shares of the Corporation (unless such Person is an
Existing Holder) and no Person (other than an Existing Holder who Constructively
Owns in excess of 9.8% of the Common Shares immediately following the
consummation of the Initial Public Offering) may Constructively Own Common
Shares in excess of 9.8% of the outstanding Common Shares of the Corporation.
Any Person who attempts to Beneficially Own or Constructively Own Common Shares
in excess of the above limitations must immediately notify the Corporation. All
capitalized items in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Common
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Shares represented may be subject to repurchase by the Corporation on the terms
and conditions set forth in the Corporation's Articles of Incorporation."
Section 6. SECURITIES EXCHANGE TRANSACTIONS. Notwithstanding any
provision contained herein to the contrary, nothing in these Amended and
Restated Articles of Incorporation shall preclude the settlement of any
transaction entered into through the facilities of the New York Stock Exchange.
FIFTH: At all times following the consummation of the Initial Public
Offering (as defined in Article FOURTH), at least a majority of the members of
the Board of Directors shall, except during the period of a vacancy or vacancies
therein, be Independent Directors. An "Independent Director" shall mean a person
who is not (i) employed by the Corporation or (ii) an "affiliate" (as defined in
Rule 405 under the Securities Act of 1933, as amended) of (A) any entity which
is part of the Developers Diversified Group, including, without limitation,
Developers Diversified Limited Partnership, an Ohio limited partnership,
Developers Diversified, Ltd., an Ohio limited partnership, W & M Properties, an
Ohio general partnership, W & Z Properties, Ltd., an Ohio limited partnership,
and DE Properties Corporation, an Ohio corporation, or (B) any partnership which
is an affiliate (as declined above) of any entity listed in clause (A) of this
Article FIFTH.
SIXTH: No holder of shares of the corporation of any class shall be
entitled as such, as a matter of right, to subscribe for or purchase shares of
any class, now or hereafter authorized, or to subscribe for or purchase
securities convertible into or exchangeable for shares of the corporation or to
which shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase shares, except such rights of subscription
or purchase, if any, for such considerations and upon such terms and conditions
as its Board of Directors from time to time may determine.
SEVENTH: Notwithstanding any provision of Sections 1701.01 to 1701.98,
inclusive, of the Ohio Revised Code, or any successor statutes now or hereafter
in force, requiring for the authorization or taking of any action the vote or
consent 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
law or these Articles of Incorporation, may be authorized or taken by the vote
or consent of the holders of shares entitling them to exercise a majority of the
voting power of the corporation or of such class or classes of shares thereof.
EIGHTH: To the extent permitted by law, the corporation, by action of
its Board of Directors, may purchase or otherwise acquire shares of any class
issued by it at such times, for such consideration and upon such terms and
conditions as its Board of Directors may determine.
NINTH: The provisions of Chapter 1701.831 of the Ohio Revised Code
shall not apply to the Corporation.
TENTH: The provisions of Chapter 1707.043 of the Ohio Revised Code
shall not apply to the Corporation.
ELEVENTH: If any provision (or portion thereof) of these Articles of
Incorporation shall be found to be invalid, prohibited, or unenforceable for any
reason, the remaining provisions (or portions thereof) of these Articles of
Incorporation shall be deemed to remain in full force and effect, and shall be
construed as if such invalid prohibited, or unenforceable provision had been
stricken herefrom or otherwise rendered inapplicable, it being the intent of the
Corporation and its shareholders that each such remaining provision (or portion
thereof) of these Articles of Incorporation remain, to the fullest extent
permitted by law, applicable and enforceable as to all shareholders,
notwithstanding any such finding.
TWELFTH: No shareholder of the Corporation may cumulate his voting
power in the election of directors.
THIRTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in these Articles of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
shareholders herein are granted subject to this reservations.
FOURTEENTH: These Amended and Restated Articles of Incorporation shall
take the place of and supersede the Corporation's existing Articles of
Incorporation.
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IN WITNESS WHEREOF, I have hereunto subscribed my name this 19th day of
November, 1992.
/s/ Albert T. Adams
-----------------------------------
Albert T. Adams, sole incorporator
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