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Exhibit 3.1
ARTICLES OF INCORPORATION
OF
LANCASTER COLONY CORPORATION
FIRST: The name of the Corporation (hereinafter called the "Corporation") is
LANCASTER COLONY CORPORATION.
SECOND: The place in Ohio where the principal office of the Corporation is
located is Columbus, Franklin County.
THIRD: The purpose for which the Corporation is formed is to engage in any
lawful act or activity for which corporations may be formed under the Ohio
General Corporation Law, as now in effect or hereafter amended.
FOURTH: The amount of the total authorized capital stock which the Corporation
shall have authority to issue is Twenty-Two Million Five Hundred Thousand
(22,500,000) shares, consisting of Twenty Million (20,000,000) shares of Common
Stock (the "Common Stock") which are common shares without par value, Two
Hundred Thousand (200,000) shares of Class A Participating Preferred Stock
("Class A Preferred Stock") which are preferred shares with $1.00 par value, One
Million One Hundred Fifty Thousand (1,150,000) shares of Class B Voting
Preferred Stock ("Class B Preferred Stock") which are preferred shares without
par value, and One Million One Hundred Fifty Thousand (1,150,000) shares of
Class C Nonvoting Preferred Stock ("Class C Preferred Stock") which are
preferred shares without par value.
(A) EXPRESS TERMS OF THE COMMON STOCK.
The shares of Common Stock shall be subject to the terms of the Class A
Preferred Stock, the Class B Preferred Stock and the Class C Preferred Stock
(collectively, "Preferred Stock") and the express terms of any series thereof.
Each share of Common Stock shall be equal to every other share of Common Stock
and the holders thereof shall be entitled to one vote for each share of Common
Stock on all questions presented to the shareholders. Subject to any rights to
receive dividends to which the holders of the outstanding shares of Preferred
Stock may be entitled, the holders of shares of Common Stock shall be entitled
to receive dividends, if and when declared, payable from time to time by the
Board of Directors from funds legally available therefor.
(B) EXPRESS TERMS OF THE CLASS A PREFERRED STOCK.
(1) DIVIDENDS.
(i) The holders of record of shares of Class A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, quarterly dividends payable in cash on
the last day of each March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
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issuance of a share or fraction of a share of Class A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00
or (b), subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), paid on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date, or with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Class A
Preferred Stock. In the event the Corporation shall at any time after November
18, 1991 (the "Rights Declaration Date"): (x) declare any dividend on Common
Stock payable in shares of Common Stock, (y) subdivide the outstanding Common
Stock, or (z) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount of dividends to which holders of
shares of Class A Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(ii) On or after the date of the first issuance of any share or
fraction of a share of Class A Preferred Stock, no dividend on Common Stock
shall be declared unless concurrently therewith a dividend or distribution is
declared on the Class A Preferred Stock as provided in clause (i) of paragraph
(B)(1) of this Article FOURTH and the declaration of any such dividend on the
Common Stock shall be expressly conditioned upon payment or declaration of and
provision for payment of a dividend on the Class A Preferred Stock. In the event
no dividend or distribution shall have been declared on the Common Stock during
the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Class A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on outstanding
shares of Class A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Class A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the record date for the first Quarterly Dividend Payment
Date following such date of issue, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Class A Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. The Board of Directors may fix a record date for the determination of
holders of shares of Class A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 60 days prior to the date fixed for the payment thereof.
(2) VOTING RIGHTS. The holders of shares of Class A Preferred Stock shall
have the following voting rights:
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(i) Each share of Class A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the shareholders of
the Corporation.
(ii) Except as otherwise provided herein or by law, the holders of
shares of Class A Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(iii) (a) If at any time dividends on any Class A Preferred Stock shall
be in arrears in an amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for the
currently quarterly dividend period on all shares of Class A Preferred Stock
then outstanding shall have been declared and paid or set apart for payment.
During each default period, holders of Class A Preferred Stock, voting as a
class, shall have the right to elect two (2) Directors.
(b) During any default period, such voting right of the holders
of Class A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (c) of this paragraph (2)(iii) or at any annual
meeting of shareholders, and thereafter at annual meetings of shareholders,
provided that such voting right shall not be exercised unless the holders of ten
percent (10%) in number of shares of Class A Preferred Stock outstanding shall
be present in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not effect the exercise by the holders of Class A Preferred
Stock of such voting right. At any meeting at which the holders of Class A
Preferred Stock shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to elect Directors
to fill such vacancies, if any, in the Board of Directors as may then exist up
to two (2) Directors or, if such right is exercised at an annual meeting, to
elect two (2) Directors. If the number which may be so elected at any special
meeting because of existing vacancies is less than two, the holders of the Class
A Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of two Directors.
After the holders of the Class A Preferred Stock shall have exercised their
right to elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or decreased except
by vote of the holders of Class A Preferred Stock as herein provided.
(c) Unless the holders of Class A Preferred Stock shall, during
an existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any shareholder or shareholders
owning in the aggregate not less than ten percent of the total number of shares
of Class A Preferred Stock outstanding may request, the calling of a special
meeting which special meeting shall thereupon be called by the President of the
Corporation. Notice of such meeting and of any annual meeting at which holders
of Class A Preferred Stock are entitled to vote pursuant to this paragraph
(2)(iii)(c) shall be given to each holder of record of Class A Preferred Stock
by mailing a copy of such notice to him at his last address as the same appears
on the books of the Corporation. Such meeting shall be called for a time not
earlier than 10 days and not later than 60 days after such order or request or
in default of
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the calling of such meeting within 60 days after such order or request, such
meeting may be called on similar notice by any shareholder or shareholders
owning in the aggregate not less than ten percent of the total number of shares
of Class A Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (2)(iii)(c), no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the next annual meeting
of the stockholders.
(d) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation, if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Class A
Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (y) the Directors so
elected by the holders of the Class A Preferred Stock shall continue in office
until their successors shall have been elected by such holders or until the
expiration of the default period, and (z) any vacancy in the Board of Directors
may (except as provided in this paragraph (2)(iii)(d)) be filled by vote of a
majority of the remaining Directors theretofore elected by the holders of the
class of stock which elected the Director whose office shall have become vacant.
References to this paragraph (iii) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (z) of the immediately preceding sentence.
(e) Immediately upon the expiration of a default period, (x) the
right of the holders of Class A Preferred Stock as a class to elect Directors
shall cease, (y) the term of any directors elected by the holders of Class A
Preferred Stock as a class shall terminate, and (z) the ongoing number of
Directors shall be such number as may be provided for in, or pursuant to, the
Articles of Incorporation or Regulations of the Corporation, irrespective of any
increase made pursuant to the provisions of paragraph (2)(iii)(b) (such number
being subject, however, to change thereafter in any manner provided by law or in
the Articles of Incorporation or Regulations). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining Directors, even though
less than a quorum.
(3) DISSOLUTION, LIQUIDATION AND WINDING UP.
(i) In the event of a voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Corporation (hereinafter referred to as a
"Liquidation"), the holders of Class A Preferred Stock shall receive an amount
per share equal to the greater of (a) $7,000, or (b) 100 times the amount per
share to be distributed to holders of Common Stock, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Class A Liquidation Preference").
(ii) In the event the Corporation shall at any time after the Rights
Declaration Date declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the Class A Liquidation
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Preference determined pursuant to paragraph (3)(i)(b) shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(4) REDEMPTION. The shares of Class A Preferred Stock shall not be
redeemable.
(5) CONVERSION RIGHTS. The Class A Preferred Stock is not convertible into
Common Stock or any other security of the Corporation.
(6) CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Class A Preferred
Stock shall at the same time be similarly exchanged or changed into an amount
per share (subject to the provision for adjustment hereinafter set forth) equal
to 100 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Class A Preferred
Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(7) FRACTIONAL SHARES. Class A Preferred Stock may be issued in fractions of
a share which shall entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Class A
Preferred Stock.
(C) EXPRESS TERMS OF THE CLASS B PREFERRED STOCK
The shares of Class B Preferred Stock may be issued from time to time in one
or more series. All shares of Class B Preferred Stock shall be of equal rank and
shall be identical, except in respect of the matters that may be fixed by the
Board of Directors as hereinafter provided, and each share of each series shall
be identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of this paragraph (C),
which provisions shall apply to all Class B Preferred Stock, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series prior to the issuance thereof to
fix:
(1) the designation of the series, which may be by distinguishing
number, letter or title;
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(2) the number of shares of the series, which number the Board of
Directors may from time to time (except where otherwise provided in the creation
of the series) increase or decrease (but not below the number of shares thereof
then outstanding);
(3) the dividend rate of the series;
(4) the dates of payment of dividends and the dates from which
dividends of the series shall be cumulative;
(5) the redemption rights and price or prices for shares of the series;
(6) sinking fund requirements, if any, for the purchase or redemption
of shares of the series;
(7) the liquidation price payable on shares of the series in the event
of any liquidation, dissolution or winding up of affairs of the Corporation;
(8) whether the shares of the series shall be convertible into Common
Stock, and, if so, the conversion price or prices, any adjustments thereof, and
all other terms and conditions upon which such conversion may be made;
(9) restrictions on the issuance of shares of any class or series; and
(10) such other terms as the Board of Directors may by law from time to
time be permitted to fix or change.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles Of Incorporation fixing or changing, with respect to
each such series, the matters described in the preceding clauses (1) to (10) of
this paragraph (C).
Shares of Class B Preferred Stock shall entitle the holder thereof to
one vote per share of Class B Preferred Stock on all matters submitted to a vote
of the shareholders of the Corporation. Except as otherwise provided herein or
by law, the holders of shares of Class B Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation. During any period in which
dividends on the Class B Preferred Stock are cumulatively in arrears in the
amount of six or more full quarterly dividends, the holders of the Class B
Preferred Stock, voting together as a class with the holders of any other class
or series of Preferred Stock who are similarly entitled to vote, will have the
right to elect two (2) directors which two (2) directorships shall be in
addition to that number of directors then determined as constituting the number
of members of the Board of Directors pursuant to the Regulations of the
Corporation. The approval of a majority of the outstanding shares of Class B
Preferred Stock voted together as a class shall be required in order to amend
the Articles of Incorporation of the Corporation to affect adversely the rights
of the holders of the Class B Preferred Stock or to take any action that would
result in the creation of or an increase in the number of authorized shares
senior or superior with respect to dividends or upon liquidation to the Class B
Preferred Stock.
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(D) EXPRESS TERMS OF CLASS C PREFERRED STOCK.
The shares of Class C Preferred Stock may be issued from time to time
in one or more series. All shares of Class C Preferred Stock shall be of equal
rank and shall be identical, except in respect of the matters that may be fixed
by the Board of Directors as hereinafter provided, and each share of each series
shall be identical with all other shares of such series, except as to the date
from which dividends are cumulative. Subject to the provisions of this paragraph
(D), which provisions shall apply to all Class C Preferred Stock, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series prior to the issuance thereof to
fix:
(1) the designation of the series, which may be by distinguishing number,
letter or title;
(2) the number of shares of the series, which number the Board of Directors
may from time to time (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof then
outstanding);
(3) the dividend rate of the series;
(4) the dates of payment of dividends and the dates from which dividends of
the series shall be cumulative;
(5) the redemption rights and price or prices for shares of the series;
(6) sinking fund requirements, if any, for the purchase or redemption of
shares of the series;
(7) the liquidation price payable on shares of the series in the event of
any liquidation, dissolution or winding up of affairs of the Corporation;
(8) whether the shares of the series shall be convertible into Common
Stock, and, if so, the conversion price or prices, any adjustments thereof, and
all other terms and conditions upon which such conversion may be made;
(9) restrictions on the issuance of shares of any class or series; and
(10) such other terms as the Board of Directors may by law from time to
time be permitted to fix or change.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect to
each such series, the matters described in the preceding clauses (1) to (10) of
this paragraph (D).
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Shares of Class C Preferred Stock shall not be entitle to voting rights
except to the extent described below. During any period in which dividends on
the Class C Preferred Stock are cumulatively in arrears in the amount of six or
more full quarterly dividends, the holders of the Class C Preferred Stock,
voting together as a class with the holders of any other class or series of
Preferred Stock who are similarly entitled to vote, will have the right to elect
two (2) directors which two (2) directorships shall be in addition to that
number of directors then determined as constituting the number of members of the
Board of Directors pursuant to the Regulations of the Corporation. The approval
of a majority of the outstanding shares of Class C Preferred Stock voted
together as a class shall be required in order to amend the Articles of
Incorporation of the Corporation to affect adversely the rights of the holders
of the Class C Preferred Stock or to take any action that would result in the
creation of or an increase in the number of authorized shares senior or superior
with respect to dividends or upon liquidation to the Class C Preferred Stock.
FIFTH: Except as otherwise provided in these Articles of Incorporation or in the
Regulations, the holders of a majority of the outstanding shares are authorized
to take any action which, but for this provision, would require the vote or
other action of the holders of more than a majority of such shares.
SIXTH: To the extent not prohibited by law, the Board of Directors may authorize
the purchase by the Corporation of shares of any class issued by it.
SEVENTH: No holder of any class of shares of the Corporation shall, as such
holder, have any preemptive or preferential right to purchase or subscribe to
any shares of any class of stock of the Corporation, whether now or hereafter
authorized, whether unissued or in treasury, or to purchase any obligations
convertible into shares of any class of stock of the Corporation, which at any
time may be proposed to be issued by the Corporation or subjected to rights or
options to purchase granted by the Corporation.
EIGHTH: No holder of shares of any class of the Corporation shall have the right
to cumulate his voting power in the election of the Board of Directors and the
right to cumulate voting described in Ohio Revised Code Section 1701.55 is
hereby specifically denied to the holders of shares of any class of the
Corporation.
NINTH: The Corporation may create and issue, whether or not in connection with
the issue and sale of any shares of stock or other securities of the
Corporation, rights or options entitling the holders thereof to purchase from
the Corporation any shares of its capital stock of any class or classes to the
extent such shares are authorized by these Articles, such rights or options to
be evidenced by or in such instrument or instruments as shall be approved by the
Board of Directors. The terms upon which any such shares may be purchased upon
the exercise of any such fight or option, including without limitation the time
or times (which may be limited or unlimited in duration) at or within which, and
the price or prices at which, any such shares may be purchased, shall be such as
shall be determined as set forth or incorporated by reference in a resolution
adopted by the Board of Directors providing for the creation and issue of such
rights or options.
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TENTH: No Person shall make a Control Share Acquisition without the prior
authorization of the shareholders of the Corporation.
(A) In order to obtain authorization of a Control Share Acquisition by the
shareholders of the Corporation, a Person shall deliver a notice (the "Notice")
to the Corporation at its principal place of business that sets forth all of the
following information:
(1) The identity of the Person who is giving the Notice;
(2) A statement that the Notice is given pursuant to this Article TENTH;
(3) The number and class of shares of the Corporation owned, directly or
indirectly, by the Person who gives the Notice, fall;
(4) The range of voting power under which the proposed Control Share
Acquisition would, if consummated, fall;
(5) A description in reasonable detail of the terms of the proposed Control
Share Acquisition; and
(6) Representations, supported by reasonable evidence, that the proposed
Control Share Acquisition, if consummated, would not be contrary to law and that
the Person who is giving the Notice has the financial capacity to make the
proposed Control Share Acquisition.
(B) (1) The Board of Directors of the Corporation shall, within ten (10) days
after receipt by the Corporation of a Notice that complies with paragraph (A),
call a special meeting of shareholders to be held not later than fifty (50) days
after receipt of the Notice by the Corporation, unless the Person who delivered
the Notice agrees to a later date, to consider the proposed Control Share
Acquisition; provided, that, the Board of Directors shall have no obligation to
call such meeting if they make a determination within ten (10) days after
receipt of the Notice (i) that the Notice was not given in good faith, (ii) that
the proposed Control Share Acquisition would not be in the best interests of the
Corporation and its shareholders or (iii) that the Person who delivered the
Notice has failed to adequately demonstrate that such Person has the financial
capacity to make the proposed Control Share Acquisition or that the proposed
Control Share Acquisition would not be contrary to law if consummated. The Board
of Directors may adjourn such meeting if, prior to such meeting, (i) the
Corporation has received a Notice from any other Person or (ii) a merger,
consolidation or sale of assets of the Corporation has been approved by the
Board of Directors and the Board of Directors has determined that the Control
Share Acquisition proposed by such other Person or the merger, consolidation or
sale of assets of the Corporation should be presented to shareholders at an
adjourned meeting or at a special meeting held at a later date.
(2) For purposes of making a determination that a special meeting of
shareholders should not be called pursuant to this paragraph (B), no such
determination shall be deemed void or voidable with respect to the Corporation
merely because one or more of its directors or
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officers who participated in making such determination may be deemed to be other
than disinterested, if in any such case the material facts of the relationship
giving rise to a basis for self-interest are known to the directors and the
directors, in good faith reasonably justified by the facts, make such
determination by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors constitute less than a
quorum. For purposes of this paragraph (B), "disinterested directors" shall mean
directors whose material contacts with the Corporation are limited principally
to activities as a director or shareholder. Persons who have substantial,
recurring business or professional contacts with the Corporation shall not be
deemed to be "disinterested directors" for purposes of this provision. A
director shall not be deemed to be other than a "disinterested director" merely
because he would no longer be a director if the proposed Control Share
Acquisition were approved and consummated.
(C) The Corporation shall give notice of such special meeting to all
shareholders of record as of the record date set for such meeting as promptly as
practicable. Such notice shall include or be accompanied by a copy of the Notice
and by a statement of the Corporation, authorized by the Board of Directors, of
its position or recommendation, or that it is taking no position or making no
recommendation, with respect to the proposed Control Share Acquisition.
(D) The Person who delivered the Notice may make the proposed Control Share
Acquisition if both the following occur: (i) the shareholders of the Corporation
authorize such acquisition at the special meeting called by the Board of
Directors and held for that purpose, and at which a quorum is present, by an
affirmative vote of a majority of the Voting Shares represented at such meeting
in person or by proxy and by a majority of the portion of such Voting Shares
represented at such meeting in person or by proxy excluding the votes of
Interested Shares; and (ii) such acquisition is consummated, in accordance with
the terms so authorized, not later than 360 days following such shareholder
authorization of the Control Share Acquisition.
(E) Shares issued or transferred to any Person in violation of this Article
TENTH shall be valid only with respect to such amount of shares as does not
result in a violation of this Article TENTH, and such issuance or transfer shall
be null and void with respect to the remainder of such shares (any such
remainder of shares being hereinafter called "Excess Shares") unless within 30
days of the date on which the Board of Directors determines that such Excess
Shares have been issued or transferred, the issuance or transfer of such Excess
Shares is approved by the Board of Directors, which approval makes specific
reference to paragraph (E) of this Article TENTH. If the issuance or transfer of
such Excess Shares is approved by the Board of Directors in accordance with the
provisions of this paragraph, then the issuance or transfer of such Excess
Shares shall be deemed, for all purposes, to have been approved prior to the
date of such issuance or transfer in accordance with paragraph F(2)(ii)(e) of
this Article TENTH. If the second clause of the first sentence of this paragraph
(E) is determined to be invalid by virtue of any legal decision, statute, rule
or regulation, any Person who holds Excess Shares in violation of this Article
TENTH shall be conclusively deemed to have acted as an agent on behalf of the
Corporation in acquiring such Excess Shares and to hold such Excess Shares on
behalf of the Corporation. While held by any Person in violation of this Article
TENTH, Excess Shares shall not be entitled to any voting rights, shall not be
considered to be outstanding for quorum or voting purposes, and shall not be
entitled to receive dividends or any other distribution with respect to such
Excess Shares. Any such Person who receives dividends or any other distribution
with
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respect to Excess Shares shall hold the same as agent for the Corporation and,
following a permitted transfer, for the transferee thereof. Notwithstanding the
foregoing, any holder of Excess Shares may transfer the same (together with any
distributions thereon) to any Person who, following such transfer, would not own
shares in violation of this Article TENTH. Upon such permitted transfer, the
Corporation shall pay or distribute to the transferee any dividends or other
distributions on the Excess Shares not previously paid or distributed.
(F) As used in this Article TENTH:
(1) "Person" includes, without limitation, an individual, a corporation
(whether nonprofit or for profit), a partnership, an unincorporated society or
association, and two or more persons having a joint or common interest.
(2) (i) "Control Share Acquisition" means the acquisition, directly or
indirectly, alone or with others, by any Person of shares of the Corporation
that, when added to all other shares of the Corporation in respect of which such
Person may exercise or direct the exercise of voting power as provided in this
paragraph (F)(2)(i), would entitle such Person, immediately after such
acquisition, directly or indirectly to exercise or direct the exercise of voting
power of the Corporation in the election of directors within any of the
following ranges of such voting power:
(a) One-fifth or more but less than one-third of such voting power;
(b) One-third or more but less than a majority of such voting power;
(c) A majority or more of such voting power.
A bank, broker, nominee, trustee, or other Person who acquires shares in the
ordinary course of business for the benefit of others in good faith and not for
the purpose of circumventing this Article TENTH shall, however, be deemed to
have voting power only of shares in respect of which such Person would be able
to exercise or direct the exercise of votes without further instruction from
others at a meeting of shareholders called under this Article TENTH. For
purposes of this Article TENTH, the acquisition of securities immediately
convertible into shares of the Corporation with voting power in the election of
directors shall be treated as an acquisition of such shares.
(ii) The acquisition of any shares of the Corporation does not
constitute a Control Share Acquisition for the purpose of this Article TENTH if
the acquisition is consummated in any of the following circumstances.
(a) By underwriters, in good faith and not for the purpose of
circumventing this Article TENTH, in connection with an offering of the
securities of the Corporation to the public;
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(b) By bequest or inheritance, by operation of law upon the death
of any individual, or by any other transfer without valuable consideration,
including a gift, that is made in good faith and not for the purpose of
circumventing this Article TENTH;
(c) Pursuant to the satisfaction of a pledge or other security
interest created in good faith and not for the purpose of circumventing this
Article TENTH;
(d) Pursuant to a merger or consolidation adopted, or a
combination or majority share acquisition authorized, by shareholder vote in
compliance with the provisions of Section 1701.78 or Section 1701.83 of the Ohio
Revised Code if the Corporation is the surviving or new corporation in the
merger or consolidation or is the acquiring corporation in the combination or
majority share acquisition and if the vote of shareholders of the surviving,
new, or acquiring corporation is required by the provisions of Section 1701.78
or 1701.83 of the Ohio Revised Code;
(e) Pursuant to a transaction which has received the prior
authorization of the Board of Directors of the Corporation which authorization
makes specific references to this paragraph (F)(2)(ii)(e);
(f) Prior to * , 1992; or
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(g) Pursuant to a contract existing prior to * , 1992.
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The acquisition by any Person of shares of the Corporation in a manner described
under this paragraph (F)(2)(ii) shall be deemed to be a Control Share
Acquisition authorized pursuant to this Article TENTH within the range of voting
power under paragraph (F)(2)(i)(a), (b) or (c) of this Article TENTH that such
Person is entitled to exercise after such acquisition, provided that, in the
case of an acquisition in a manner described under paragraph (F)(2)(ii)(b) or
(c), the transferor of such shares to such Person had previously obtained or was
deemed to have obtained any authorization of shareholders required under this
Article TENTH in connection with such transferor's acquisition of shares of the
Corporation.
(iii) The acquisition of shares of the Corporation in good faith and
not for the purpose of circumventing this Article TENTH, the acquisition of
which (a) had previously been authorized by shareholders in compliance with this
Article TENTH or (b) would have constituted a Control Share Acquisition but for
paragraph (F)(2)(ii), does not constitute a Control Share Acquisition for the
purpose of this Article TENTH unless such acquisition entitles any Person,
directly or indirectly, to exercise or direct the exercise of voting power of
the Corporation in the election of directors in excess of the range of such
voting power authorized pursuant to this Article TENTH, or deemed to be so
authorized under paragraph (F)(2)(ii).
(3) "Interested Shares" means Voting Shares with respect to which any of
the following Persons may exercise or direct the exercise of the voting power:
* The date which is the Effective Time of the merger of Lancaster Colony
Corporation, a Delaware corporation, with and into LC of Ohio, Inc., an
Ohio corporation.
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(i) any Person whose Notice prompted the calling of the meeting of
shareholders;
(ii) any officer of the Corporation elected or appointed by the
directors of the Corporation; and
(iii) any employee of the Corporation who is also a director of the
Corporation.
(G) No proxy appointed for or in connection with the shareholder authorization
of a Control Share Acquisition pursuant to this Article TENTH shall be valid
unless it provides that it is revocable. No such proxy is valid unless it is
sought, appointed, and received both:
(1) In accordance with all applicable requirements of law; and
(2) Separate and apart from the sale or purchase, contract or tender for
sale or purchase, or request or invitation for tender for sale or purchase, of
shares of the Corporation.
(H) Proxies appointed for or in connection with the shareholder authorization
of a Control Share Acquisition pursuant to this Article TENTH shall be revocable
at all times prior to the obtaining of such shareholder authorization, whether
or not coupled with an interest.
(I) Notwithstanding any other provisions of these Articles of Incorporation or
the Regulations of the Corporation, as the same may be in effect from time to
time, or any provision of law that might otherwise permit a lesser vote of the
directors or shareholders, but in addition to any affirmative vote of the
directors or the holders of any particular class or series of shares required by
law, the Articles of Incorporation or the Regulations of the Corporation, as the
same may be in effect from time to time, the affirmative vote of at least 80% of
the Voting Shares shall be required to alter, amend, supersede or repeal this
Article TENTH or adopt any provisions in the Articles of Incorporation or
Regulations of the Corporation, as the same may be in effect from time to time,
that are inconsistent with the provisions of this Article TENTH.
(J) Each certificate representing shares of the Corporation's capital stock
shall contain the following legend:
"Transfer of the shares represented by this Certificate is subject to the
provisions of Article TENTH of the Corporation's Articles of Incorporation as
the same may be in effect from time to time. Upon written request delivered to
the Secretary of the Corporation at its principal place of business, the
Corporation will mail to the holder of the Certificate a copy of such provisions
without charge within five (5) days after receipt of written request therefor.
By accepting this Certificate the holder hereof acknowledges that it is
accepting same subject to the provisions of said Article TENTH as the same may
be in effect from time to time and covenants with the Corporation and each
shareholder thereof from time to time to comply with the provisions of said
Article TENTH as the same may be in effect from time to time."
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ELEVENTH: The provisions of Section 1701.831 of the Ohio Revised Code, as
amended from time to time, or any successor provision or provisions to said
section, shall only apply to this Corporation with respect to any particular
Control Share Acquisition attempt, as such is defined in Section 1701.831 of the
Ohio Revised Code, in the event that there is a determination by a court of
competent jurisdiction with respect to which no appeal is pending that the
provisions of Article TENTH of these Articles of Incorporation shall not be
applicable to a particular Control Share Acquisition attempt or in the event
that Article TENTH of these Articles of Incorporation, as such Articles of
Incorporation may be amended from time to time, ceases to be an Article of these
Articles of Incorporation, disregarding any renumbering of such Article TENTH
resulting from any amendment of these Articles of Incorporation.
TWELFTH: (A) If, as of the record date for the determination of the stockholders
entitled to vote thereon or consent thereto, any Prior Holder (as hereinafter
defined) owns or controls, directly or indirectly, 5% or more of the outstanding
shares of the corporation entitled to vote, then the affirmative vote of the
holders of shares representing at least 80% of the shares of stock of the
corporation entitled to vote for the election of directors, voting as a class,
will be required, except as otherwise expressly provided in paragraph (B) of
this Article TWELFTH, in order for any of the following actions or transactions
to be effected by the Corporation, or approved by the Corporation as stockholder
of any subsidiary of the corporation.
(1) any merger or consolidation of the Corporation or any of its
subsidiaries with or into such Prior Holder or any of its affiliates,
subsidiaries or associates;
(2) any merger or consolidation of the Corporation with or into any
subsidiary of the Corporation, except a merger with a subsidiary of the
Corporation in which the Corporation is the surviving corporation, or a
subsidiary of the Corporation is the surviving corporation and, following such
merger, the certificate or articles of incorporation of such subsidiary contains
provisions substantially the same in substance as those in Article EIGHTH,
Article TENTH, Article ELEVENTH, this Article TWELFTH and Article THIRTEENTH of
these Articles of Incorporation;
(3) any sale, lease, exchange or other disposition of all or any
substantial part of the assets of the Corporation or any of its subsidiaries to
or with such Prior Holder or any of its affiliates, subsidiaries or associates;
(4) any issuance or delivery of any voting securities of the Corporation or
any of its subsidiaries to such Prior Holder or any of its affiliates,
subsidiaries or associates in exchange for cash, other assets or securities, or
a combination thereof; or
(5) any dissolution of the Corporation.
(B) The vote of shareholders specified in paragraph (A) of this Article TWELFTH
will not apply to any action or transaction described in such paragraph, if the
Board of Directors of the Corporation has approved the action or transaction
before direct or indirect ownership or control of 5% or more of the outstanding
shares of stock of the Corporation entitled to vote is acquired by the Prior
Holder.
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(C) For the purpose of this Article TWELFTH and for guidance to the Board of
Directors for the purpose of paragraph (D) hereof:
(1) "Prior Holder" means any corporation, person or entity other than the
Corporation or any of its subsidiaries;
(2) a Prior Holder will be deemed to "own" or "control," directly or
indirectly, any outstanding shares of stock of the Corporation (a) which it has
the right to acquire pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or otherwise, or (b)
which are owned, directly or indirectly (including shares deemed owned through
application of clause (a) above), by any other corporation, person or other
entity which is its subsidiary, affiliate or associate or with which it or any
of its subsidiaries, affiliates or associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
stock of the Corporation (or, with or without such an agreement, arrangement or
understanding, acts in concert);
(3) "outstanding shares of the Corporation entitled to vote" and "voting
securities" mean such shares as are entitled to vote in the election of
directors, considered as one class;
(4) "subsidiary" means any corporation of which another corporation owns,
directly or indirectly, 50% or more of the voting stock;
(5) an "associate" and an "affiliate" have the same meanings as set forth
in the General Rules and Regulations under the Securities Exchange Act of 1934;
and
(6) "substantial part of the assets" means assets then having a fair market
value, in the aggregate, or more than $5,000,000.
(D) The Board of Directors of the Corporation will have the power and duty to
determine for the purposes of this Article TWELFTH, on the basis of information
then known to the Board of Directors,
(1) who constitutes a Prior Holder,
(2) whether any Prior Holder owns or controls, directly or indirectly, 5%
or more of the outstanding shares of the Corporation entitled to vote, and what
entities are its subsidiaries, affiliates or associates, and
(3) whether any proposed sale, lease, exchange or other disposition
involves a substantial part of the assets of the Corporation or any of its
subsidiaries. Any such determination by the Board will be conclusive and binding
for all purposes.
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THIRTEENTH: The Corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation in the manner prescribed by the
Ohio General Corporation Law. However, the provisions set forth in Article
EIGHTH, Article TENTH, Article ELEVENTH, Article TWELFTH, and this Article
THIRTEENTH of these Articles of Incorporation may not be altered, amended,
superseded or repealed in any respect, unless such action is approved by the
affirmative vote of the holders of shares representing at least 80% of the
shares of the Corporation entitled to vote for the election of directors, voting
as a class. All rights conferred in these Articles of Incorporation are granted
subject to the reservation set forth in this Article THIRTEENTH.
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