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EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRSTMERIT CORPORATION
As of April 21, 1999
FIRST: The name of the Corporation shall be FIRSTMERIT CORPORATION.
SECOND: The place in Ohio where its principal office is to be located
is in the City of Akron in Summit County, but the Corporation may establish and
maintain its principal office, or other offices, at other places in the United
States of America, as its Board of Directors may, from time to time, determine.
THIRD: The purposes for which the Corporation is formed are as follows:
(a) To engage in business as a "bank holding company" in
accordance with the provisions of The Bank Holding Company Act of 1956
(Pub. Law 511, 84th Cong. 2d Sess., approved May 9, 1956), as amended
(hereinafter referred to as the "Act"), and in furtherance thereof to
purchase or otherwise acquire, own, hold for investment and otherwise
deal with or dispose of real and personal property of every kind, type
and description, wherever situated, and securities, including but not
limited to its own securities and the securities of "banks,"
"companies" and other "bank holding companies," as those terms are
defined in the Act, to render services and otherwise engage in any and
all activities pertinent and appropriate to the operation of a bank
holding company; provided, however, that the Corporation shall not own
or hold properties or securities, render any services or engage in any
activities which are prohibited by the Act, or the regulations
promulgated by the Board of Governors of the Federal Reserve System
thereunder, as amended from time to time.
For the purpose of this paragraph, "securities" shall mean any
and all stocks, bonds, debentures, notes, acceptances, evidences of
indebtedness or other obligations, certificates of interest or
participation in any property or ventures, scrip, interim receipts,
voting trust certificates, any interests or instruments commonly known
as securities, and any and all certificates of interest or
participation in, or of deposit of, any of the foregoing, or receipts
for, guaranties of, or warrants or rights to subscribe for or purchase
the same.
(b) In general, to engage in any other lawful act or activity
for which corporations may be formed under Chapter 1701 of the Ohio
Revised Code to the extent that such act or activity is not prohibited
by the Act, or the regulations promulgated thereunder, as amended from
time to time.
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FOURTH:
PART A. CLASSES OF STOCK
The maximum number of shares which the Corporation is authorized to
issue and to have outstanding at any time shall be Three Hundred and Seven
Million, which shall be classified as follows:
(a) Three Hundred Million (300,000,000) of said shares shall
be Common Stock, without par value; and
(b) Seven Million (7,000,000) of said shares shall be Series
Preferred Stock without par value (no par value Preferred Stock).
PART B. EXPRESS TERMS OF NO PAR VALUE PREFERRED STOCK
The express terms and provisions of the no par value Preferred Stock
shall be as follows:
SECTION 1. DESIGNATION. All shares of no par value Preferred Stock
shall be of equal rank and shall be identical except in respect to the
particulars as may be fixed and determined by the Board of Directors as
hereinafter provided, and each share of each series shall be identical in all
respects with all other shares of such series, except as to the date from which
dividends are cumulative.
The Board of Directors is hereby authorized in respect of any unissued
shares of no par value Preferred Stock to fix or change:
(a) The division of such shares into series, the designation
of each series (which may be by distinguishing number, letter or title)
and the authorized number of shares in each series, which number may be
increased (except where otherwise provided by the Board of Directors in
creating the series) or decreased (but not below the number of shares
thereof outstanding) by like action of the Board of Directors;
(b) The annual dividend rates of each series;
(c) The dates at which dividends, if declared, shall be
payable;
(d) The redemption rights and price or prices, if any, for
shares of the series;
(e) The terms and amounts of any sinking fund provided for the
purchase or redemption of shares of the series;
(f) 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;
(g) Whether the shares of the series shall be convertible into
Common Stock and, if so, the conversion price or prices and the
adjustments thereof, if any, and all other terms and conditions upon
which such conversion may be made; and
(h) Restrictions on the issuance of shares of the same series
or of any other class or series.
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SECTION 2. DIVIDENDS AND DISTRIBUTIONS. The holders of the no par value
Preferred Stock of each series shall be entitled to receive out of any funds
legally available for no par value Preferred Stock as and when declared by the
Board of Directors, dividends in cash at the rate for such series fixed by the
Board of Directors in the manner set forth in Section 1 hereof and no more,
payable quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after the
date of issuance thereof. No dividends may be paid or declared or set apart for
any of the no par value Preferred Stock for any quarterly dividend period unless
at the same time a like proportionate dividend for the same quarterly dividend
period, ratably in proportion to the respective annual dividend rates fixed
therefor, shall be paid upon or declared or set apart for all no par value
Preferred Stock, of all series then issued and outstanding and entitled to
receive such dividend.
SECTION 3. CERTAIN RESTRICTIONS. In no event, so long as any no par
value Preferred Stock shall be outstanding, shall any dividends, except a
dividend payable in Common Stock, be paid or declared or any distribution be
made, except as aforesaid, on the Common Stock, nor shall any Common Stock be
purchased, retired or otherwise acquired by the corporation:
(a) Unless all accrued and unpaid dividends on no par value
Preferred Stock, including the full dividends for the current quarterly
dividend period, shall have been declared and paid, or a sum sufficient
for payment thereof set apart; and
(b) Unless there shall be no arrearages with respect to the
redemption of no par value Preferred Stock of any series from any
Sinking Fund provided for shares of such series by the Board of
Directors in the manner set forth in Section 1 hereof.
SECTION 4. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Subject to the provisions hereof, the holders of the no
par value Preferred Stock of any series shall, in case of voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the corporation, be entitled to receive in full out of the assets of
the corporation, including its capital, before any amount shall be paid
or distributed among the holders of the Common Stock the amounts fixed
with respect to shares of such series in accordance with the decision
of the Board of Directors in the manner set forth in Section 1 hereof
plus an amount equal to all dividends accrued and unpaid thereon to the
date of payment of the amounts due pursuant to such liquidation,
dissolution or winding up of the affairs of the corporation.
(b) The merger or consolidation of the corporation into or
with any other corporation, or the merger of any other corporation into
it, or the sale, lease or conveyance of all or substantially all the
property of the corporation, shall not be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purpose of
this Section 4.
SECTION 5. VOTING RIGHTS. Except as provided in Part C or D of this
Article Fourth of these Amended and Restated Articles of Incorporation, the
holders of no par Preferred Stock shall be entitled at all times to one (1) vote
for each share; and, except as required by law, the holders of such no par value
Preferred Stock and the holders of Common Stock of the corporation shall vote
together as one (1) class on all matters.
PART C. SERIES A PREFERRED STOCK
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SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred Stock") and
the number of shares constituting the Series A Preferred Stock shall be eight
hundred thousand (800,000). Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock, no par value, (the "Common Stock") of the
Corporation, and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in
cash on (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (i) $1 or (ii) 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), declared 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 Series A Preferred Stock. In the
event the Corporation shall at any time 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 shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (ii) 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.
(b) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (a) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, 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 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for
the first Quarterly
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Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series 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. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time 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 shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number 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.
(b) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of
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stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and all
such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Amended and Restated Articles of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of Shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made
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ratably on the Series A Preferred Stock and all such parity stock in proportion
to the total amounts to which the holders of all such shares are entitled upon
such liquidation, dissolution or winding up. In the event the Corporation shall
at any time 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 shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) 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.
SECTION 7. 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 each share of
Series 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 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 shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series 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.
SECTION 8. NO REDEMPTION. The shares of Series A Preferred Stock shall
not be redeemable.
SECTION 9. RANK. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
SECTION 10. AMENDMENT. The Amended and Restated Articles of
Incorporation of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special Rights of the
Series A Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least a majority of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
PART D. 6 1/2% CUMULATIVE CONVERTIBLE PREFERRED STOCK SERIES B, NO PAR
VALUE
SECTION 1. DESIGNATION AND AMOUNT.
Of the 7,000,000 shares of authorized no par value Preferred Stock,
220,000 shares are hereby designated as a series entitled "6 1/2% Cumulative
Convertible Preferred Stock, Series B" (hereinafter called "Series B Preferred
Stock"). The number of shares of Series B Preferred Stock may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number
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of shares of Series B Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible into Series B
Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of Series B Preferred Stock, in preference to
the holders of Common Stock and of any other class of shares ranking
junior to the Series B Preferred Stock, shall be entitled to receive
out of any funds legally available for Series B Preferred Stock and
when and as declared by the Board of Directors, dividends in cash at
the annual rate of 6 1/2% of the liquidation preference of $25.00 per
share, payable in accordance with this Section 2.
(b) Dividends on Series B Preferred Stock shall be payable, if
declared, quarterly on March 1, June 1, September 1, and December 1 of
each year, the first quarterly dividend being payable, if declared, on
March 1, 1999. The dividends payable for each full quarterly dividend
period on each share of Series B Preferred Stock shall be $.40625.
Dividends for a dividend period on the Series B Preferred
Stock, or for any period shorter or longer than a full dividend period
on the Series B Preferred Stock shall be computed on the basis of
30-day months and a 360-day year. The aggregate dividend payable
quarterly to each holder of Series B Preferred Stock shall be rounded
to the nearest one cent with $.005 being rounded upward. Each dividend
shall be payable to the holders of record on such record date, not less
than 15 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 Series B Preferred Stock shall be cumulative
as follows:
(i) With respect to shares included in the issue of
Series B Preferred Stock and preferred shares issued any time
thereafter up to and including the record date for the payment
of the first dividend on the issue of Series B Preferred
Stock, dividends shall be cumulative from the date of the
issue of Series B Preferred Stock; and
(ii) With respect to preferred shares issued any time
after the aforesaid record date for payment of the first
dividend on the issue of Series B Preferred Stock, 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 Series
B Preferred Stock and ending on the payment date of that
dividend, dividends with respect to such shares shall be
cumulative from that dividend payment date.
SECTION 3. REDEMPTION.
(a) The Series B Preferred Stock may not be redeemed prior to
June 24, 1999. Subject to the provisions of Section 5(b)(iii) of this
Part, on and after June 24, 1999, the shares of Series B Preferred
Stock may be redeemed, in whole or in part, at the election of the
Corporation, upon
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notice as provided in this Section 3, by resolution of its Board of
Directors, at any time or from time to time, at a redemption price of
$25.00 per share, plus, in each case, an amount equal to all
accumulated, accrued, and unpaid dividends through the date fixed for
redemption.
(b) Notice of every redemption shall be mailed, postage
prepaid, to the holders of record of the Series B Preferred Stock 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. At any time after notice as
provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price for the Series B Preferred Stock
to be redeemed, together with accrued and unpaid dividends thereon to
the redemption date, with any bank or trust company 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 Series B Preferred
Stock so to be redeemed amounts equal to the redemption price of the
Series B Preferred Stock 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 shares of Series B Preferred
Stock 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.
(c) If the holders of the Series B Preferred Stock 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.
(d) Any Series B Preferred Stock which is (a) redeemed by the
Corporation pursuant to the provisions of this Section, (b) converted
in accordance with Section 4 hereof, or (c) otherwise acquired by the
Corporation, shall resume the status of authorized but unissued Series
B Preferred Stock.
SECTION 4. CONVERSION.
Shares of the Series B Preferred Stock shall be convertible into Common
Stock on the following terms and conditions:
(a) Subject to and upon compliance with the provisions of this
Section, the holder of any shares of Series B Preferred Stock may at
such holder's option, at any time or from time to time, convert any
such shares into the number of fully paid and non-assessable shares of
Common Stock determined by dividing (i) the product of $25.00 and the
number of shares of Series B Preferred Stock to be converted by (ii)
the conversion price (the "Conversion
Price") in effect on the conversion date. The initial Conversion Price shall be
$9.0123, subject to adjustment as set forth in paragraph (d) of this Section 4.
If any shares of Series B Preferred Stock shall
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be called for redemption, the right to convert such shares shall terminate and
expire at the close of business on the redemption date.
(b) No payment or adjustment shall be made by the Corporation
to any holder of shares of Series B Preferred Stock surrendered for
conversion or redemption in respect of dividends accrued since the last
preceding dividend payment date on the shares of Series B Preferred
Stock surrendered for conversion; provided, however, that if shares of
Series B Preferred Stock shall be converted or redeemed subsequent to
any record date with respect to any dividend payment date and prior to
the next such succeeding dividend payment date, the dividend falling
due on such dividend payment date shall be payable on such dividend
payment date notwithstanding such conversion or redemption, and such
dividend (whether or not punctually paid or duly provided for) shall be
paid to the person in whose name such shares are registered at the
close of business on such record date.
(c) METHOD OF CONVERSION.
(i) The surrender of any shares of Series B Preferred
Stock for conversion shall be made by the holder thereof by
delivering the certificate or certificates evidencing
ownership of such shares with proper endorsement or
instruments of transfer to the Corporation at the office or
agency to be maintained by the Corporation for that purpose,
and such holder shall give written notice to the Corporation
at said office or agency that he elects to convert such shares
of Series B Preferred Stock in accordance with the provisions
thereof and of this Section. Such notice shall also state the
number of whole shares of Series B Preferred Stock and the
name or names (with addresses) in which the certificate or
certificates evidencing ownership of Common Stock which shall
be issuable on such conversion shall be issued. In the case of
lost or destroyed certificates evidencing ownership of shares
of Series B Preferred Stock to be surrendered for conversion,
the holder shall submit proof of loss or destruction and such
indemnity as shall be required by the Corporation.
(ii) Subject to the provisions hereof, every such
notice of election to convert shall constitute a contract
between the holder of such shares of Series B Preferred Stock
and the Corporation, whereby such holder shall be deemed to
subscribe for the amount of the Common Stock which he will be
entitled to receive upon such conversion and, in payment and
satisfaction of such subscription, to surrender such shares of
Series B Preferred Stock and to release the Corporation from
all obligations thereon (subject to the payment of accrued
dividends in accordance herewith), and whereby the Corporation
shall be deemed to agree that the surrender of such shares of
Series B Preferred Stock and the extinguishment of its
obligation thereon (except as aforesaid), shall constitute
full payment for the Common Stock so subscribed for and to be
issued upon such conversion.
(iii) As soon as practicable after its receipt of
such notice and the certificate or certificates evidencing
ownership of such shares of Series B Preferred Stock, the
Corporation shall issue and shall deliver at said office or
agency to the person for whose account such shares of Series B
Preferred Stock were so surrendered, or on his or her written
order, a certificate or certificates for the number of such
shares of common stock into which the Series B Preferred Stock
surrendered is to be converted and a check or cash payment (if
any) to which such holder is entitled with respect to
fractional shares as
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determined by the Corporation, in accordance with Section 4(e)
hereof, at the close of business on the date of conversion.
(iv) Such conversion shall be deemed to have been
effected on the date on which the Corporation shall have
received such notice and the certificate or certificates for
such shares of Series B Preferred Stock; and the person or
persons in whose name or names any certificate or certificates
for Common Stock shall be issuable upon such conversion shall
be deemed to have become on said date the holder or holders of
record of the shares represented thereby; provided that any
such surrender on any date when the stock transfer books of
the Corporation shall be closed shall become effective for all
purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such
surrender occurs.
(d) The Conversion Price shall be subject to adjustments from
time to time as follows:
(i) In case the corporation shall at any time (A)
declare a dividend on the Common Stock in shares of its
capital stock, (B) subdivide its outstanding Common Stock, (C)
combine the outstanding Common Stock into a smaller number of
shares, or (D) issue any shares of its capital stock by
reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger
in which the Corporation is the surviving corporation), the
Conversion Price in effect on the record date for such
dividend or on the effective date of such subdivision,
combination or reclassification shall be proportionately
adjusted so that the holder of any Series B Preferred Stock
converted after such time shall be entitled to receive the
aggregate number and kind of shares which, if such Series B
Preferred Stock had been converted immediately prior to such
time, the holder would have owned upon such conversion and
been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above
shall occur.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its Common Stock (which rights or
warrants are not available on an equivalent basis to holders
of the Series B Preferred Stock on conversion) entitling them
to subscribe for or purchase Common Stock at a price per share
less than the current market price per share (as defined in
subparagraph (iv) of this paragraph (d), at the record date
for the determination of stockholders entitled to receive such
rights or warrants, the Conversion Price shall be adjusted
(subject to the limitations contained in subparagraph (vii) of
this paragraph (d)) by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction,
the denominator of which shall be the number of shares of
Common Stock outstanding on such date of issue plus the number
of additional shares of Common Stock to be offered for
subscription or purchase pursuant to the rights or warrants
and the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issue plus the number
of shares of Common Stock which the aggregate offering price
of the total number of shares of Common Stock so to be offered
would purchase at such current market price. Such adjustment
shall become effective at the close of business on such record
date; however, to the extent that Common Stock is not
delivered after the expiration of such rights or warrants, the
Conversion Price shall be readjusted (but only with respect to
Series B Preferred Stock converted after such expiration) to
the Conversion Price which would then be in effect had the
adjustments
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made upon the issuance of such rights or warrants been made
upon the basis of delivery of only the number of shares of
Common Stock actually issued.
(iii) In case the Corporation shall distribute to all
holders of Common Stock (including any such distribution made
in connection with a consolidation or merger in which the
Corporation is the surviving corporation) evidences of its
indebtedness or assets (including securities but excluding
cash dividends or distributions paid out of retained earnings
and dividends payable in Common Stock) or subscription rights
or warrants (excluding those referred to in subparagraph (ii)
of this paragraph (d), the Conversion Price shall be adjusted
(subject to the limitations contained in subparagraph (vii) of
this paragraph (d)) by multiplying the Conversion Price in
effect immediately prior to the record date for determination
of stockholders entitled to receive such distribution by a
fraction, the denominator of which shall be the current market
price per share of Common Stock (as defined in subparagraph
(iv) of this paragraph (d)) on such record date and the
numerator of which shall be such current market price per
share of Common Stock, less the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive) of the portion of the evidences of
indebtedness or assets or subscription rights or warrants so
to be distributed which are applicable to one share of Common
Stock. Such adjustment shall become effective at the close of
business on such record date.
(iv) For the purpose of any computation under
subparagraphs (ii) and (iii) of this paragraph (d), the
current market price per share of Common Stock on any record
date shall be deemed to be the average of the daily closing
prices for the five consecutive business days selected by the
Board of Directors commencing not more than 20 trading days
before, and ending not later than, the earlier of the day in
question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For this
purpose, the term "'ex' date," when used with respect to any
issuance or distribution, shall mean the first date on which
the Common Stock trades on the applicable exchange or in the
applicable market without the right to receive such issuance
or distribution. The closing price for each date shall be the
reported last sale price or, in case no such reported sale
takes place on such day, the average of the reported closing
bid and asked prices on the Nasdaq National Market System, or,
if the Common Stock is not listed or admitted to trading on
any national securities exchange or quoted on such National
Market System, the average of the closing bid and asked prices
in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the
Board for that purpose.
(v) In the case of any consolidation of the
Corporation with, or merger of the Corporation into, any other
entity, any merger of another entity into the Corporation
(other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Corporation) or any
sale or transfer of all or substantially all of the assets of
the Corporation, each holder of a share of Series B Preferred
Stock then outstanding shall have the right thereafter to
convert such share only into the kind and amount of
securities, cash and other property receivable upon such
consolidation, merger, sale
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or transfer by a holder of the number of shares of Common
Stock of the Corporation into which such shares of Series B
Preferred Stock might have been converted immediately prior to
such consolidation, merger, sale or transfer, assuming such
holder of Common Stock of the Corporation is not an entity
with which the Corporation consolidated or into which the
corporation merged or which merged into the Corporation or to
which such sale or transfer was made, as the case may be
("constituent entity"), or an affiliate of a constituent
entity, and assuming such holder failed to exercise his rights
of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such consolidation,
merger, sale or transfer (provided that if the kind or amount
of securities, cash and other property receivable be upon such
consolidation, merger, sale or transfer is not the same for
each share of Common Stock of the Corporation held immediately
prior to such consolidation, merger, sale or transfer by other
than a constituent entity or an affiliate thereof in respect
of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this
subsection (v) the kind and amount of securities, cash and
other property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality
of the non-electing shares). If necessary, appropriate
adjustment shall be made in the application of the provisions
set forth herein with respect to the rights and interests
thereafter of the holders of shares of Series B Preferred
Stock, to the end that the provisions set forth herein shall
thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the
conversion of the shares. The above provisions shall similarly
apply to successive consolidations, mergers, sales or
transfers. The Corporation shall not effect any such
consolidation, merger or sale, unless prior to or
simultaneously with the consummation thereof the successor
corporation (if other than the Corporation) resulting from
such consolidation or merger or the corporation purchasing
such assets or other appropriate corporation or entity shall
assume, by written instrument, the obligation to deliver to
the holder of each share of Series B Preferred Stock such
shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to
receive under this Section 4(d).
(vi) The corporation may make such adjustments in the
Conversion Price, in addition to those required by
subparagraphs (i) through (v) of this Section 4(d), as it
considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients.
(vii) No adjustment in the Conversion Price will be
made for the issuance of shares of capital stock to employees
pursuant to the Corporation or any of its subsidiaries' stock
option, stock ownership or other benefit plans. No adjustment
will be required to be made in the Conversion Price until
cumulative adjustments require an adjustment of at least 1% of
such Conversion Price.
(e) No fractional shares or scrip representing fractional shares shall
be issued upon the conversion of any shares of Series B Preferred Stock, but the
holder thereof will receive in cash an amount equal to the value of such
fractional share of Common Stock based on the current market price (as defined
in subparagraph (iv) of Section 4(d)). If more than one share of Series B
Preferred Stock shall be surrendered for conversion at one time by the same
holder, the number of full shares issuable upon conversion thereof shall be
computed on the basis of the aggregate number of such shares so surrendered.
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(f) The Corporation shall pay any tax in respect of
the issue of stock certificates on conversion of shares of
Series B Preferred Stock. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of stock in
any name other than that of the holder of the shares
converted, and the Corporation shall not be required to issue
or deliver any such stock certificate unless and until the
person or persons requesting the issuance hereof shall have
paid the Corporation the amount of any such tax or shall have
established to the satisfaction of the Corporation that such
tax has been paid.
(g) The Corporation shall at all times reserve and
keep available out of its authorized and unissued Common Stock
or have available in its treasury the full number of shares of
Common Stock deliverable upon the conversion of all
outstanding shares of Series B Preferred Stock and shall take
all such action as may be required from time to time in order
that it may validly and legally issue fully paid and
non-assessable shares of Common Stock upon conversion of the
Series B Preferred Stock.
(h) In the event:
(i) the Corporation shall declare a dividend
(or any other distribution) on its Common Stock
(other than a cash dividend payable out of retained
earnings); or
(ii) the Corporation shall authorize the
issuance to holders of its Common Stock of rights or
warrants to subscribe for or purchase Common Stock;
or
(iii) of a reclassification of the Common
Stock of the Corporation (other than a subdivision or
combination of its outstanding Common Stock, or a
change in par value, or from par value to no par
value, or from no par value to par value) or of any
consolidation or merger to which the Corporation is a
party or of the sale or transfer of all or
substantially all of the assets of the Corporation
and for which approval of any stockholders of the
Corporation is required; or
(iv) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation:
then, and in each event, the Corporation shall cause to be mailed to
each holder of Series B Preferred Stock, at his address as the same
shall appear on the books of the Corporation, as promptly as possible
but in any event at least fifteen days prior to the applicable date
hereinafter specified, (A) the record date for the purpose of such
dividend, distribution, rights or warrants, and the nature and amount
of such dividend, distribution, rights or warrants; or (B) the date on
which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding up.
(h) For the purposes of Section 4, "Common Stock" shall mean
stock of the Corporation of any class, whether now or hereafter
authorized, which has the right to participate in the
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distribution of either earnings or assets of the Corporation without
limit as to the amount of percentage, including, without limitation,
the Common Stock. In case by reason of the operation of Section 4 the
shares of Series B Preferred Stock shall be convertible into any other
shares of stock or other securities or property of the Corporation or
of any other corporation, any reference herein to the conversion of
shares of Series B Preferred Stock shall be deemed to refer to and
include the conversion of shares of Series B Preferred Stock into such
other shares of stock or other securities or property.
SECTION 5. VOTING RIGHTS.
(a) Except as expressly provided in this Section, or as
otherwise from time to time required by applicable law, the Series B
Preferred Stock shall have no voting rights.
(i) If, and so often as, the Corporation shall be in
default in the payment of the equivalent of the full dividends
on the Series B Preferred Stock, whether or not earned or
declared, for six dividend payment periods (whether or not
consecutive), which in the aggregate contain at least 540
days, the holders of the Series B Preferred Stock, voting
separately as a class, shall be entitled to elect, as herein
provided, two additional members of the Board of Directors of
the Corporation; provided however, that the holders of the
Series B Preferred Stock shall not have or 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 one-third of the outstanding Series B
Preferred Stock then outstanding 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 the Series B Preferred Stock shall have
been paid, whereupon the holders of the Series B Preferred
Stock 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.
(ii) In the event of default entitling the holders of
Series B Preferred Stock to elect two additional directors as
specified in paragraph (i) of this Section, 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 25% of the shares of the Series B Preferred Stock,
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
the Series B Preferred Stock. At any meeting at which the
holders of the Series B Preferred Stock shall be entitled to
elect directors, the holders of one-third of the shares of the
Series B Preferred Stock, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of the
holders of a plurality 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 the holders of Series B Preferred Stock are entitled to
elect as herein provided. Notwithstanding any provision of
these Amended and Restated Articles of Incorporation or the
Amended and Restated 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 the holders of the Series B Preferred
Stock pursuant to this Section shall serve in addition to any
other directors then in office or proposed to be elected
otherwise than pursuant to this Section. Nothing in this
Section shall prevent any change otherwise permitted in the
total number of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Section. Notwithstanding any classification of the other
directors of the Corporation, the
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two directors elected by the holders of the Series B Preferred
Stock shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders, subject to
subsection (a) (iii) hereof.
(iii) Immediately upon any divesting of the special
class voting rights of the holders of the Series B Preferred
Stock in respect of elections of directors as provided in this
Section, the terms of office of all directors then in office
elected by such holders shall terminate. 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.
(b) The affirmative vote or consent of the holders of at least
two-thirds of the shares of the Series B Preferred Stock then
outstanding, voting or consenting separately as a class, given in
person or by proxy either in writing or at a meeting called for such
purpose, shall be necessary to effect any one or more of the following
(but so far as the holders of Series B Preferred Stock are concerned,
such action may be effected with such vote or consent):
(i) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation or of
the Amended and Restated Code of Regulations of the
Corporation which affects materially and adversely the
preferences or voting or other rights of the holders of the
Series B Preferred Stock; provided, however, neither the
amendment of the Articles of Incorporation so as to authorize,
create or change the authorized or outstanding number of
Series B Preferred Stock or of any shares ranking on a parity
with or junior to the Series B Preferred Stock, nor the
amendment of the provisions of the Code of Regulations so as
to change the number of directors of the Corporation, shall be
deemed to materially and adversely affect the preferences or
voting or other rights of the holders of Series B Preferred
Stock;
(ii) The authorization, creation or the increase in
the authorized number of any shares, or any security
convertible into shares, in either case ranking senior to the
Series B Preferred Stock; or
(iii) The purchase or redemption (for sinking fund
purposes or otherwise) of less than all of the shares of the
Series B Preferred Stock then outstanding except in accordance
with a stock purchase offer made to all holders of record of
Series B Preferred Stock, unless all dividends on all Series B
Preferred Stock then outstanding for all previous dividend
periods shall have been declared and paid or funds therefor
set apart. Notwithstanding anything to the contrary herein, an
amendment which increases the number of authorized shares of
any class or series of Preferred Stock or the creation or
issuance of other classes or series of Preferred Stock, in
each case ranking on a parity with
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or junior to the Series B Preferred Stock with respect to the
payment of dividends and distribution of assets upon
liquidation, dissolution or winding up, or substitutes the
surviving entity in a merger or consolidation for the
Corporation, shall not be considered to be such an adverse
change.
SECTION 6. DEFINITIONS.
For the purposes of this Part D Section 6:
(a) Whenever reference is made to shares "ranking prior (or
senior) to the Series B Preferred Stock," 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 Series B Preferred Stock;
(b) Whenever reference is made to shares "on a parity with the
Series B Preferred Shares", such reference shall mean and include all
other 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 Series B
Preferred Stock; and
(c) Whenever reference is made to shares "ranking junior to
the Series B Preferred Stock," such reference shall mean and include
all shares of the Corporation other than those defined under
Subsections (a) and (b) of this Section.
SECTION 7. LIQUIDATION RIGHTS: PRIORITY. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Series B Preferred Stock 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
Stock or any other shares ranking junior to the Series B Preferred Stock,
$25.00, 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 shares of
Series B Preferred Stock of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed ratably upon
all outstanding shares of Series B Preferred Stock in proportion to the full
preferential amount to which each such share is entitled. After payment to the
holders of Series B Preferred Stock of the full preferential amounts as
aforesaid, the holders of Series B Preferred Stock, as such, shall have no right
or claim to any of the remaining assets of the Corporation.
No payment on account of such liquidation, dissolution or winding up of
the affairs of the Corporation shall be made to the holders of any class or
series of stock ranking on a parity with the Series B Preferred Stock in respect
of the distribution of assets, unless there shall likewise be paid at the same
time to the holders of the Series B Preferred Stock like proportionate
distributive amounts, ratably, in proportion to the full distributive amounts to
which they and the holders of such parity stock are
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respectively entitled with respect to such preferential distribution.
FIFTH: The authority of this Corporation, its shareholders and
directors, is subject to the following:
(a) No holder of shares of this Corporation, regardless of
class, shall be entitled as a matter of right to exercise any
preemptive rights, to subscribe for or to purchase shares of any class,
now or hereafter authorized, or to purchase or subscribe for securities
which are convertible into or exchangeable for shares of the
Corporation, regardless of class, or to which shall be attached or
appertain any warrants or rights entitling the holder thereof to
subscribe for or purchase shares of the Corporation, regardless of
class, except such rights to subscribe for or purchase, at such prices
and according to such terms and conditions as the Board of Directors
may, from time to time, approve and authorize in its sole discretion.
(b) The Corporation may purchase its shares, regardless of
class, from time to time, and upon such terms and conditions as the
Board of Directors shall determine; provided, however, that the
Corporation shall not purchase any of its shares if, after such
purchase, its assets would be less than its liabilities plus stated
capital and unless the Corporation first complies with Section 225.6 of
Regulation Y, 12 C.F.R. 225.6, as promulgated and amended, from time to
time, by the Board of Governors of the Federal Reserve System, to the
extent that such regulation may be applicable to the purchase.
(c) No shareholder shall have the right to vote cumulatively
in the election of directors.
SIXTH: The Corporation may indemnify any director or officer, any
former director or officer of the Corporation and any person who is or has
served at the request of the Corporation as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise (and
his heirs, executors and administrators) against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, to the
full extent permitted by applicable law, as the same may be in effect from time
to time. The indemnification provided for herein shall not be deemed to restrict
the right of the Corporation to (i) indemnify employees, agents and others as
permitted by such law, (ii) purchase and maintain insurance or provide similar
protection on behalf of directors, officers or such other persons against
liabilities asserted against them or expenses incurred by them arising out of
their service to the Corporation as contemplated herein, and (iii) enter into
agreements with such directors, officers, employees, agents or others
indemnifying them against any and all liabilities (or such lesser
indemnification as may be provided in such agreements) asserted against them or
incurred by them arising out of their service to the Corporation as contemplated
herein.
SEVENTH:
(a) Except as otherwise expressly provided in this Article
SEVENTH, any Business Combination (as hereinafter defined) with an
Interested Party (as hereinafter defined) or any
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Affiliate (as hereinafter defined) thereof shall require the
affirmative vote of at least eighty percent (80%) of the outstanding
shares of each class of capital stock of the Corporation issued and
outstanding and entitled to vote as a class and a majority of each
class of those shares of capital stock of the Corporation issued and
outstanding and entitled to vote as a class other than those shares
beneficially owned by an Interested Party and any Affiliate thereof.
For the purpose of this Article SEVENTH, an "Interested Party" is
defined as a corporation, person or entity that, together with all
Affiliates thereof, is the beneficial owner, directly or indirectly, of
ten percent (10%) or more of the shares of any class of capital stock
of the Corporation issued and outstanding and entitled to vote.
(b) The provisions of this Article SEVENTH set forth in
paragraph (a) hereof shall not apply to any Business Combination:
(i) with an Interested Party if the Board of Directors of the
Corporation shall have approved, by resolution, a memorandum
of understanding or agreement with such Interested Party, a
transaction substantially consistent with such Business
Combination prior to or simultaneously at the time such
Interested Party, together with all Affiliates thereof, became
the beneficial owner, directly or indirectly, of ten percent
(10%) or more of any class of the outstanding shares of
capital stock of the Corporation; or
(ii) (a) which has been approved at any time before
consummation thereof by a two-thirds (2/3) vote of the total
membership of the Board of Directors of the Corporation and a
majority of the Continuing Directors (as hereinafter defined)
of the Corporation at the time of said vote; and
(b) which provides for a price to be paid in cash for the
shares of capital stock of the Corporation in an amount not
less than the highest price, including commissions, previously
paid by such Interested Party for any of the shares of the
Corporation's capital stock of that class.
(c) For the purposes of this Article SEVENTH: (i) an
Interested Party shall be deemed to be the beneficial owner of any
shares of capital stock of the Corporation if such Interested Party
would be deemed the beneficial owner of such shares under the General
Rules and Regulations of the Securities Exchange Act of 1934 as
presently in effect, and (ii) the term "Affiliate" shall have the
meaning ascribed to such term in Rule 12b-2 of such Rules and
Regulations as presently in effect.
(d) A majority of the Continuing Directors shall determine for
the purposes of this Article SEVENTH, on the basis of information then
known to it, whether (i) any Interested Party beneficially owns,
together with its Affiliates, directly or indirectly, ten percent (10%)
or more of a class of the outstanding shares of capital stock of the
Corporation entitled to vote as a class, (ii) any sale, lease, exchange
or other disposition of part of the assets of the Corporation involves
substantially all of the assets of the Corporation, (iii) the
memorandum of understanding or agreement referred to above is
substantially consistent with the transaction to which it relates, and
(iv) if an Interested Party purchases capital stock for consideration
other than cash, the "price" paid by the Interested Party for such
capital stock. A corporation, person or other entity purchasing shares
of capital stock of any class directly from the Corporation shall not
be deemed an Interested Person by reason of such purchase if such
determination is not made later than simultaneously with
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such purchase. Any such determination by the Continuing Directors shall
be conclusive and binding for all purposes of this Article SEVENTH.
(e) A Business Combination, for the purposes of this Article
SEVENTH, shall mean:
(i) any merger or consolidation of the Corporation, or a
subsidiary of the Corporation, into or with any other person,
corporation or entity; or
(ii) any sale, lease, mortgage, pledge, transfer or other
disposition of all or substantially all of the assets of the
Corporation to or with any other corporation, person or
entity; or
(iii) any reclassification of securities (including a reverse
stock split) or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any
subsidiaries or any other transaction which has the effect of
increasing the proportionate share of the outstanding shares
of any class of equity or convertible securities of the
Corporation or any subsidiary which is directly or indirectly
owned by any corporation, person or other entity; or
(iv) the issuance or transfer by the Corporation or any
subsidiary (in one transaction or a series of transactions) of
any securities of the Corporation or any subsidiary to any
corporation, person or entity of a number or amount of
securities equal to five percent (5%) or more of the then
outstanding number or amount of any class of the Corporation's
securities to a corporation, person or other entity; or
(v) the adoption of any plan as proposed for liquidation or
dissolution of the Corporation proposed by or on behalf of any
corporation, person or entity.
(f) For the purposes of this Article SEVENTH, the term
Continuing Directors shall mean those members of the Board of Directors
of the Corporation (i) elected by the shareholders, or otherwise
appointed, prior to the time when the Interested Party and any
Affiliate acquired four percent (4%) of the shares of a class of the
capital stock of the Corporation issued and outstanding and entitled to
vote or (ii) a person recommended to succeed a Continuing Director by a
majority of the Continuing Directors.
(g) This Article SEVENTH may not be amended or repealed except
by the affirmative vote of the holders of at least eighty percent (80%)
of the shares of each class of capital stock of the Corporation issued
and outstanding and entitled to vote as a class, and a majority of
those shares of each class of capital stock of the Corporation issued
and outstanding and entitled to vote as a class other than those shares
beneficially owned by an Interested Party and any Affiliate thereof;
provided, however, that the only vote required for amendment or repeal
shall be the affirmative vote of the holders of two-thirds (2/3) of
such issued and outstanding shares if the Board of Directors of the
Corporation proposes the amendment or repeal by resolution approved by
seventy-five percent (75%) of the total membership of the Board of
Directors and a majority of the Continuing Directors.
EIGHTH: These Amended and Restated Articles of Incorporation shall
supercede the existing articles of incorporation and amendments thereto.
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