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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DEVELOPERS DIVERSIFIED REALTY CORPORATION
WILLIAM H. SCHAFER, Vice President, and JOAN U. ALLGOOD, Secretary, of
Developers Diversified Realty Corporation, an Ohio corporation (the
"Corporation"), do hereby certify that the following resolution to amend the
Amended and Restated Articles of Incorporation of the Corporation was adopted by
a majority vote of the Board of Directors of the Corporation at a meeting held
on August 31, 1999, no greater vote being required by the Amended and Restated
Articles of Incorporation of the Corporation, and pursuant to the authority of
Section 1701.70(B)(1) and 1701.73(A) of the Ohio Revised Code:
RESOLVED, that the Amended and Restated Articles of
Incorporation of the Corporation be amended by adding at the end of
Division A-XI of Article FOURTH thereof a new Section 6 reading as
follows:
Section 6. 8 7/8 % Class K Cumulative Redeemable Preferred
Shares. Of the 750,000 authorized Class K Shares, 350,000 shares are
designated as a series entitled "8 7/8 % Class K Cumulative Redeemable
Preferred Shares" (hereinafter called "8 7/8 % Class K Preferred
Shares"). The 8 7/8 % Class K Preferred Shares shall have the express
terms set forth in this Division as being applicable to all Class K
Preferred Shares as a class and, in addition, the following express
terms applicable to all 8 7/8 % Class K Preferred Shares as a series of
Class K Shares:
(a) The annual dividend rate of the 8 7/8 % Class K Preferred Shares
shall be 8 7/8 % of the liquidation preference of $250.00 per share.
(b) Dividends on the 8 7/8 % Class K Preferred Shares shall be payable,
if declared, quarterly on or about the fifteenth day of January, April,
July and October. The dividends payable for each full quarterly
dividend period on each 8 7/8 % Class K Preferred Shares shall be
$5.546875. Dividends for any period shorter or longer than a full
dividend period on the 8 7/8 % Class K Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The aggregate dividend payable quarterly to each holder of 8
7/8 % Class K Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward. Each
dividend shall be payable to the holders of record on such record date,
no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board
of Directors.
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(c) Dividends on 8 7/8 % Class K Preferred Shares shall be cumulative
as follows:
(1) With respect to shares included in the initial issue of
8 7/8 % Class K Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment
of the first dividend on the initial issue of 8 7/8 % Class K
Preferred Shares, dividends shall be cumulative from the date
of the initial issue of 8 7/8 % Class K Preferred Shares; and
(2) With respect to shares issued any time after the aforesaid
record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares,
except that if such shares are issued during the period
commencing the day after the record date for the payment of a
dividend on 8 7/8 % Class K Preferred Shares and ending on the
payment date of that dividend, dividends with respect to such
shares shall be cumulative from that dividend payment date.
(d) The Corporation may, at any time or from time to time on, at its
option upon not less than thirty (30) nor more than sixty (60) days'
written notice, may redeem all or any part of the 8 7/8 % Class K
Preferred Shares at a redemption price of $250.00 per share plus, in
each case, an amount equal to all dividends accrued and unpaid thereon
to the redemption date, without interest. The redemption price (other
than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the
Corporation, which may include any equity securities (including common
shares and preferred shares), shares, interests, participation or other
ownership interests (however designated) and any rights (other than
debt securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 8 7/8 % Class K Preferred Share in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation shall be $250.00, plus an amount
equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) The affirmative vote of the holders of at least two-thirds of the
Class K Preferred Shares at the time outstanding, voting separately as
a class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect the authorization,
creation, increase in the authorized number of or issuance of any
shares, or any security convertible into or exchangeable for shares, in
any such case ranking prior to such series of Class K Preferred Shares
in dividends, distributions or rights upon liquidation, dissolution or
winding up.
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IN WITNESS WHEREOF, we have executed this instrument in one or
more counterparts as of the 2nd day of September, 1999.
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Name:
Title:
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Name: Joan U. Allgood
Title: Secretary
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DEVELOPERS DIVERSIFIED CORPORATION
The undersigned, desiring to form a corporation for profit
under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code, does
hereby certify:
FIRST: The name of the Corporation shall be Developers Diversified
Realty Corporation.
SECOND: The place in the State of Ohio where the principal office of
the Corporation is located is Moreland Hills, Cuyahoga County.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to 1701.98,
inclusive of the Ohio Revised Code.
FOURTH: The authorized number of shares of the Corporation is
109,000,000, consisting of 100,000,000 Common Shares, without par value
(hereinafter called "Common Shares"), 1,500,000 Class A Cumulative Preferred
Shares, without par value (hereinafter called "Class A Shares"), 1,500,000 Class
B Cumulative Preferred Shares, without par value (hereinafter called "Class B
Shares"), 1,500,000 Class C Cumulative Preferred Shares, without par value
(hereinafter called "Class C Shares"), 1,500,000 Class D Cumulative Preferred
Shares, without par value (hereinafter called "Class D Shares"), 1,500,000 Class
E Cumulative Preferred Shares, without par value (hereinafter called "Class E
Shares"), and 1,500,000 Noncumulative Preferred Shares, without par value
(hereinafter called "Noncumulative Shares").
DIVISION A
I. The Class A Cumulative Preferred Shares. The Class A Shares shall
have the following express terms:
Section 1. Series. The Class A Shares may be issued from time
to time in one or more series. All Class A Shares shall be of
equal rank and shall be identical, except in respect of the
matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of a series shall be
identical with all other shares of such series, except as to
the dates from which dividends shall accrue and be cumulative.
All Class A Shares shall rank on a parity with the Class B
Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares and shall be identical to
all Class B Shares, Class C Shares, Class D Shares, Class E
Shares and Noncumulative Shares except (1) in respect of the
matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Class A Shares,
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Class B Shares, Class C Shares, Class D Shares and Class E
Shares shall be cumulative as set forth herein. Subject to the
provisions of Sections 2 through 5, both inclusive, and Item
VII of this Division, which provisions shall apply to all
Class A Shares, the Board of Directors hereby is authorized to
cause such shares to be issued in one or more series and, with
respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item I) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
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Section 2. Dividends.
(a) The holders of Class A Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class A Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
A Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class A Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class B Shares, Class C Shares, Class D
Shares, Class E Shares and Noncumulative Shares then issued
and outstanding and entitled to receive such dividends.
(b) So long as any Class A Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Class A Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking
junior to the Class A Shares, nor shall any Common Shares or
any other shares ranking junior to the Class A Shares be
purchased, retired or otherwise acquired by the Corporation,
except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class A
Shares received by the Corporation subsequent to the date of
first issuance of Class A Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item I.
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(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption
retirement or other acquisition of, Common Shares or any other
shares ranking on a parity with or junior to the Class A
Shares shall be inapplicable to (i) any payments in lieu of
issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the
conversion of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item VIII(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section
857 of the Code), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders
of all classes of stock (the "Total Dividends"), then, to the
extent permissible under the Code and to the extent it does
not cause any dividends to fail to qualify for the dividends
paid deduction under Section 561 of the Code, the portion of
the Capital Gains Amount that shall be allocable to holders of
the Class A Shares shall be the amount that the total
dividends paid or made available to the holders of the Class A
Shares for the year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class A Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item I; and
(2) Shall, from time to time, make such redemptions
of each series of Class A Shares as may be required to fulfill
the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price
fixed in accordance with the provisions of Section 1 of this
Item I; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class A
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item I prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class A Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and
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surplus of not less than $100,000,000, named in such notice
and direct that there be paid to the respective holders of the
Class A Shares so to be redeemed amounts equal to the
redemption price of the Class A Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on
surrender of the share certificate or certificates held by
such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or
trust company, such holders shall cease to be shareholders
with respect to such shares; and from and after the time such
notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or
claim against the Corporation with respect to such shares,
except only the right to receive such money from such bank or
trust company without interest or to exercise before the
redemption date any unexpired privileges of conversion. In the
event less than all of the outstanding Class A Shares are to
be redeemed, the Corporation shall select by lot the shares so
to be redeemed in such manner as shall be prescribed by the
Board of Directors.
(2) If the holders of Class A Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank
or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any Class A Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class A Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
A Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class A
Shares, unless all dividends on all Class A Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class A Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation,
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including its capital, before any amount shall be paid or
distributed among the holders of the Common Shares or any
other shares ranking junior to the Class A Shares, the amounts
fixed with respect to shares of such series in accordance with
Section 1 of this Item I, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment of
the amount due pursuant to such liquidation, dissolution or
winding up of the affairs of the Corporation. In the event the
net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Class
A Shares, Class B Shares, Class C Shares, Class D Shares,
Class E Shares and Noncumulative Shares of the full
preferential amount to which they are respectively entitled,
then such net assets shall be distributed ratably upon all
outstanding Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares and Noncumulative Shares in
proportion to the full preferential amount to which each such
share is entitled.
(2) After payment to the holders of Class A Shares of
the full preferential amounts as aforesaid, the holders of
Class A Shares, as such, shall have no right or claim to any
of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class A Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class A
Shares at the time outstanding, whether or not earned or
declared, for a number of consecutive dividend payment periods
which in the aggregate contain at least 540 days, all holders
of such Class A Shares, voting separately as a class, together
with all Class B Shares, Class C Shares, Class D Shares, Class
E Shares and Noncumulative Shares upon which like voting
rights have been conferred and are exercisable under the
circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the
Board of Directors of the Corporation; provided, however, that
the holders of such Class A Shares shall not exercise such
special class voting rights except at meetings of such
shareholders for the election of directors at which the
holders of not less than 50% of such Class A Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class A Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class A Shares shall be divested
of their special class voting rights in respect of
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subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified
in this paragraph.
(2) In the event of default entitling holders of
Class A Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Class A Shares upon which such default in the
payment of dividends exists and notice thereof shall be given
in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class A Shares. At any meeting at
which such holders of Class A Shares shall be entitled to
elect directors, holders of 50% of such Class A Shares,
present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
A Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class A Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class A Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class A Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class A Shares are
entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class B Shares,
Class C Shares, Class D Shares, Class E Shares or
Noncumulative Shares are entitled to elect directors pursuant
hereto by reason of any default in the payment of dividends
thereon, then the voting rights of the Class A Shares, the
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Class B Shares, the Class C Shares, the Class D Shares, the
Class E Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a
number of votes proportional to the aggregate liquidation
preference of its outstanding shares). In such case, the
holders of Class A Shares and of all such other shares then
entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other shares have
elected such directors prior to the happening of the default
or event permitting the holders of Class A Shares to elect
directors, or prior to a written request for the holding of a
special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class A Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class A Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose, shall be
necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class A Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class A Shares
or of any shares ranking on a parity with or junior to the
Class A Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class A Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class A Shares.
(e) In the event, and only to the extent, that (1) Class A
Shares are issued in more than one series and (2) Ohio law
permits the holders of a series of a class of capital stock to
vote separately as a class, the affirmative vote of the
holders of at least two-thirds of each series of Class A
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of
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such series which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated Articles
of Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class A Shares
or of any shares ranking on a parity with or junior to the
Class A Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
Section 6. 9 1/2% Class A Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class A Shares, 460,000
shares are designated as a series entitled "9 1/2% Class A
Cumulative Redeemable Preferred Shares" (hereinafter called
"9 1/2% Class A Preferred Shares"). The 9 1/2% Class A
Preferred Shares shall have the express terms set forth in
this Item I as being applicable to all Class A Shares as a
class and, in addition, the following express terms applicable
to all 9 1/2% Class A Preferred Shares as a series of Class A
Shares:
(a) The annual dividend rate of the 9 1/2% Class A
Preferred Shares shall be 9 1/2% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 9 1/2% Class A Preferred Shares
shall be payable, if declared, quarterly on or about the 15th
day of March, June, September, and December each year, the
first quarterly dividend being payable, if declared, on
December 15, 1995. The dividends payable for each full
quarterly dividend period on each 9 1/2% Class A Preferred
Shares shall be $5.94.
Dividends for the initial dividend period on the
9 1/2% Class A Preferred Shares, or for any period shorter or
longer than a full dividend period on the 9 1/2% Class A
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 9 1/2% Class A
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 9 1/2% Class A Preferred Shares
shall be cumulative as follows:
(1) With respect to shares included in the
initial issue of 9 1/2% Class A Preferred Shares and
shares issued any time thereafter up to and including
the record date for the payment of the first dividend
on the initial issue of 9 1/2% Class A Preferred
Shares, dividends shall be cumulative from the date
of the initial issue of 9 1/2% Class A Preferred
Shares; and
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(2) With respect to shares issued any time
after the aforesaid record date, dividends shall be
cumulative from the dividend payment date next
preceding the date of issue of such shares, except
that if such shares are issued during the period
commencing the day after the record date for the
payment of a dividend on 9 1/2% Class A Preferred
Shares and ending on the payment date of that
dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 9 1/2% Class A Preferred
Shares may not be redeemed prior to November 15, 2000. At any
time or from time to time on and after November 15, 2000 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 9 1/2% Class A Preferred Shares at a
redemption price of $250.00 per share plus, in each case, an
amount equal to all dividends accrued and unpaid thereon to
the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and
unpaid dividends) is payable solely out of the sale proceeds
of other capital shares of the Corporation, which may include
any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 9 1/2% Class A Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 9 1/2% Class A
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 9 1/2% Class A
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Item I, be deemed to be
made in respect of the earliest dividend period with respect
to which the Corporation is in default.
II. The Class B Cumulative Preferred Shares. The Class B Cumulative
Preferred Shares shall have the following express terms:
Section 1. Series. The Class B Shares may be issued from time
to time in one or more series. All Class B Shares shall be of
equal rank and shall be identical, except in respect of the
matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of a series shall be
identical with all other shares of such series, except as to
the dates from which dividends shall accrue and be cumulative.
All Class B Shares shall rank on a parity with the Class A
Shares, the Class C Shares, the Class D Shares, the Class E
Shares and the Noncumulative Shares and shall be identical to
all Class A Shares, Class C Shares, Class D Shares, Class E
Shares and Noncumulative Shares except (1) in respect of the
Page 10
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matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares and the
Class E Shares are cumulative as set forth herein. Subject to
the provisions of Sections 2 through 5, both inclusive, and
Item VII of this Division, which provisions shall apply to all
Class B Shares, the Board of Directors hereby is authorized to
cause such shares to be issued in one or more series and with
respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item II) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), both inclusive, of this Section and is
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15
authorized to take such actions with respect thereto as may be required by law
in order to effect such amendments.
Section 2. Dividends.
(a) The holders of Class B Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class B Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
B Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class B Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to the
Noncumulative Shares, only with respect to the then current
dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or
declared or set apart for all Class A Shares, Class C Shares,
Class D Shares, Class E Shares and Noncumulative Shares then
issued and outstanding and entitled to receive such dividends.
(b) So long as any Class B Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Class B Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking
junior to the Class B Shares, nor shall any Common Shares or
any other shares ranking junior to the Class B Shares be
purchased, retired or otherwise acquired by the Corporation,
except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class B
Shares received by the Corporation subsequent to the date of
first issuance of Class B Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment thereof set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or
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16
Noncumulative Shares of any series from any sinking fund
provided for shares of such series in accordance with the
provisions of Section 1 of this Item II.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption,
retirement or other acquisition of, Common Shares or any other
shares ranking on a parity with or junior to the Class B
Shares shall be inapplicable to (i) any payments in lieu of
issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the
conversion of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares into
Common Shares or (iii) the exercise by the Corporation of its
rights pursuant to Item VIII(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section
857 of the Code), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders
of all classes of stock (the "Total Dividends"), then, to the
extent permissible under the Code and to the extent that it
does not cause any dividends to fail to qualify for the
dividends paid deduction under Section 561 of the Code, the
portion of the Capital Gains Amount that shall be allocable to
holders of the Class B Shares shall be the amount that the
total dividends paid or made available to the holders of the
Class B Shares for the year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class B Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item II; and
(2) Shall, from time to time, make such redemptions
of each series of Class B Shares as may be required to fulfill
the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price
fixed in accordance with the provisions of Section 1 of this
Item II; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class B
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item II prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the
Page 13
17
aggregate redemption price of Class B Shares to be redeemed,
together with accrued and unpaid dividends thereon to the
redemption date, with any bank or trust company in Cleveland,
Ohio, or New York, New York, having capital and surplus of not
less than $100,000,000, named in such notice and direct that
there be paid to the respective holders of the Class B Shares
so to be redeemed amounts equal to the redemption price of the
Class B Shares so to be redeemed, together with such accrued
and unpaid dividends thereon, on surrender of the share
certificate or certificates held by such holders; and upon the
deposit of such notice in the mail and the making of such
deposit of money with such bank or trust company, such holders
shall cease to be shareholders with respect to such shares;
and from and after the time such notice shall have been so
deposited and such deposit of money shall have been so made,
such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right
to receive such money from such bank or trust company without
interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all
of the outstanding Class B Shares are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed
in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Class B Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank
or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any Class B Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class B Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
B Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class B
Shares, unless all dividends on all Class B Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
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(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class B Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class B Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item II, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative
Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class B Shares of
the full preferential amounts as aforesaid, the holders of
Class B Shares, as such, shall have no right or claim to any
of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other
corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class B Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class B
Shares at the time outstanding, whether or not earned or
declared, for a number of consecutive dividend payment periods
which in the aggregate contain at least 540 days, all holders
of Class B Shares, voting separately as a class, together with
all Class A Shares, Class C Shares, Class D Shares, Class E
Shares and Noncumulative Shares upon which like voting rights
have been conferred and are exercisable under the
circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the
Board of Directors of the Corporation; provided, however, that
the holders of such Class B Shares shall not exercise such
special class voting rights except at meetings of such
shareholders for the election of directors at which the
holders of not less than 50% of such Class B Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class B Shares
Page 15
19
then outstanding shall have been paid or declared and a sum
sufficient therefor set aside for payment, whereupon the
holders of such Class B Shares shall be divested of their
special class voting rights in respect of subsequent elections
of directors, subject to the revesting of such special class
voting rights in the event above specified in this paragraph.
(2) In the event of default entitling holders of
Class B Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Class B Shares upon which such default in the
payment of dividends exists and notice thereof shall be given
in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class B Shares. At any meeting at
which such holders of Class B Shares shall be entitled to
elect directors, holders of 50% of such Class B Shares,
present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
B Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class B Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation nor require
the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the
two directors elected by such holders of Class B Shares shall
be elected annually for terms expiring at the next succeeding
annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class B Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class B Shares are
entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any
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Class A Shares, Class C Shares, Class D Shares, Class E Shares
or Noncumulative Shares are entitled to elect directors
pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A
Shares, the Class B Shares, the Class C Shares, the Class D
Shares, the Class E Shares and the Noncumulative Shares then
entitled to vote shall be combined (with class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class B Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class B Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class B Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class B Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose, shall be
necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class B Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class B Shares
or of any shares ranking on a parity with or junior to the
Class B Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class B Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such Class B
Shares.
(e) In the event, and only to the extent, that (1) Class B
Shares are issued in more than one series and (2) Ohio law
permits the holders of a series of a class of capital stock to
vote separately as a class, the affirmative vote of the
holders of at least two-thirds of each series of Class B
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise,
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of any of the provisions of these Amended and Restated
Articles of Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects adversely and
materially the preferences or voting or other rights of the
holders of such series which are set forth in these Amended
and Restated Articles of Incorporation, as amended; provided,
however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class
B Shares or of any shares remaining on a parity with or junior
to the Class B Shares nor the amendment of the provisions of
the Code of Regulations so as to change the number of
classification of directors of the Corporation shall be deemed
to affect adversely and materially preferences or voting or
other rights of the holders of such series.
Section 6. 9.44% Class B Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class B Shares, 177,500
shares are designated as a series entitled "9.44% Class B
Cumulative Redeemable Preferred Shares" (hereinafter called
"9.44% Class B Preferred Shares"). The 9.44% Class B Preferred
Shares shall have the express terms set forth in this Item II
as being applicable to all Class B Shares as a class and, in
addition, the following express terms applicable to all 9.44%
Class B Preferred Shares as a series of Class B Shares:
(a) The annual dividend rate of the 9.44% Class B
Preferred Shares shall be 9.44% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 9.44% Class B Preferred Shares
shall be payable, if declared, quarterly on or about the 15th
day of March, June, September, and December each year, the
first quarterly dividend being payable, if declared, on March
15, 1996. The dividends payable for each full quarterly
dividend period on each 9.44% Class B Preferred Shares shall
be $5.90.
Dividends for the initial dividend period on the
9.44% Class B Preferred Shares, or for any period shorter or
longer than a full dividend period on the 9.44% Class B
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 9.44% Class B
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 9.44% Class B Preferred Shares shall
be cumulative as follows:
(1) With respect to shares included in the initial
issue of 9.44% Class B Preferred Shares and shares
issued any time thereafter up to and including the
record date for the payment of the first dividend on
the initial issue of 9.44% Class B Preferred Shares,
dividends shall be
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cumulative from the date of the initial issue of
9.44% Class B Preferred Shares; and
(2) With respect to shares issued any time after the
aforesaid record date, dividends shall be cumulative
from the dividend payment date next preceding the
date of issue of such shares, except that if such
shares are issued during the period commencing the
day after the record date for the payment of a
dividend on 9.44% Class B Preferred Shares and ending
on the payment date of that dividend, dividends with
respect to such shares shall be cumulative from that
dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 9.44% Class B Preferred
Shares may not be redeemed prior to December 26, 2000. At any
time or from time to time on and after December 26, 2000 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 9.44% Class B Preferred Shares at a redemption
price of $250.00 per share plus, in each case, an amount equal
to all dividends accrued and unpaid thereon to the redemption
date, without interest. The redemption price (other than the
portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital
shares of the Corporation, which may include any equity
securities (including common shares and preferred shares),
shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 9.44% Class B Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 9.44% Class B
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 9.44% Class B
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Item II, be deemed to be
made in respect of the earliest dividend period with respect
to which the Corporation is in default.
III. The Class C Cumulative Preferred Shares. The Class C Shares shall
have the following express terms:
Section 1. Series. The Class C Shares may be issued from time
to time in one or more series. All Class C Shares shall be of
equal rank and shall be identical, except in respect of the
matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of a series shall be
identical with all other shares of such series, except as to
the dates from which dividends shall accrue and
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be cumulative. All Class C Shares shall rank on a parity with
the Class A Shares, the Class B Shares, the Class D Shares,
the Class E Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class D
Shares, Class E Shares and Noncumulative Shares except (1) in
respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive,
of this Section 1 and (2) only dividends on Class A Shares,
Class B Shares, Class C Shares, Class D Shares and Class E
Shares shall be cumulative as set forth herein. Subject to the
provisions of Sections 2 through 5, both inclusive, and Item
VII of this Division, which provisions shall apply to all
Class C Shares, the Board of Directors hereby is authorized to
cause such shares to be issued in one or more series and, with
respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item III) on the issuance of
shares of the same series or of any other class or series.
Page 20
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The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class C Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class C Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
C Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class C Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class D
Shares, Class E Shares and Noncumulative Shares then issued
and outstanding and entitled to receive such dividends.
(b) So long as any Class C Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Class C Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking
junior to the Class C Shares, nor shall any Common Shares or
any other shares ranking junior to the Class C Shares be
purchased, retired or otherwise acquired by the Corporation,
except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class C
Shares received by the Corporation subsequent to the date of
first issuance of Class C Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
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(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item III.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption
retirement or other acquisition of, Common Shares or any other
shares ranking on a parity with or junior to the Class C
Shares shall be inapplicable to (i) any payments in lieu of
issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the
conversion of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item VIII(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section
857 of the Code), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders
of all classes of stock (the "Total Dividends"), then, to the
extent permissible under the Code and to the extent it does
not cause any dividends to fail to qualify for the dividends
paid deduction under Section 561 of the Code, the portion of
the Capital Gains Amount that shall be allocable to holders of
the Class C Shares shall be the amount that the total
dividends paid or made available to the holders of the Class C
Shares for the year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class C Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item III; and
(2) Shall, from time to time, make such redemptions
of each series of Class C Shares as may be required to fulfill
the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price
fixed in accordance with the provisions of Section 1 of this
Item III; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class C
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to
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26
Section 1 of this Item III prior to the issuance thereof. At
any time after notice as provided above has been deposited in
the mail, the Corporation may deposit the aggregate redemption
price of Class C Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any
bank or trust company in Cleveland, Ohio, or New York, New
York, having capital and surplus of not less than
$100,000,000, named in such notice and direct that there be
paid to the respective holders of the Class C Shares so to be
redeemed amounts equal to the redemption price of the Class C
Shares so to be redeemed, together with such accrued and
unpaid dividends thereon, on surrender of the share
certificate or certificates held by such holders; and upon the
deposit of such notice in the mail and the making of such
deposit of money with such bank or trust company, such holders
shall cease to be shareholders with respect to such shares;
and from and after the time such notice shall have been so
deposited and such deposit of money shall have been so made,
such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right
to receive such money from such bank or trust company without
interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all
of the outstanding Class C Shares are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed
in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Class C Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank
or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any Class C Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class C Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
C Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class C
Shares, unless all dividends on all Class C Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
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Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class C Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class C Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item III, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative
Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class C Shares of
the full preferential amounts as aforesaid, the holders of
Class C Shares, as such, shall have no right or claim to any
of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class C Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class C
Shares at the time outstanding, whether or not earned or
declared, for a number of consecutive dividend payment periods
which in the aggregate contain at least 540 days, all holders
of such Class C Shares, voting separately as a class, together
with all Class A Shares, Class B Shares, Class D Shares, Class
E Shares and Noncumulative Shares upon which like voting
rights have been conferred and are exercisable under the
circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the
Board of Directors of the Corporation; provided, however, that
the holders of such Class C Shares shall not exercise such
special class voting rights except at meetings of such
shareholders for the election of directors at which the
holders of not less than 50% of such Class C Shares are
present in person or by proxy; and provided further, that the
special class voting rights
Page 24
28
provided for in this paragraph when the same shall have become
vested shall remain so vested until all accrued and unpaid
dividends on such Class C Shares then outstanding shall have
been paid or declared and a sum sufficient for the payment
thereof set aside for payment, whereupon the holders of such
Class C Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors,
subject to the revesting of such special class voting rights
in the event above specified in this paragraph. All dividend
payments made on the Class C Shares, at any time during which
the Corporation is in default in the payment of dividends on
such Class C Shares for any dividend period, shall be deemed
to be made in respect of the earliest dividend period with
respect to which the Corporation is in default.
(2) In the event of default entitling holders of
Class C Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Class C Shares upon which such default in the
payment of dividends exists and notice thereof shall be given
in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class C Shares. At any meeting at
which such holders of Class C Shares shall be entitled to
elect directors, holders of 50% of such Class C Shares,
present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
C Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class C Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class C Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class C Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death,
Page 25
29
resignation, removal from office or otherwise, the remaining
director elected by such holders voting as a class may elect a
successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(c) If at any time when the holders of Class C Shares are
entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class D Shares, Class E Shares or
Noncumulative Shares are entitled to elect directors pursuant
hereto by reason of any default in the payment of dividends
thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the
Class E Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a
number of votes proportional to the aggregate liquidation
preference of its outstanding shares). In such case, the
holders of Class C Shares and of all such other shares then
entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other shares have
elected such directors prior to the happening of the default
or event permitting the holders of Class C Shares to elect
directors, or prior to a written request for the holding of a
special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class C Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class C Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose, shall be
necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class C Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class C Shares
or of any shares ranking on a parity with or junior to the
Class C Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of Class C Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class C Shares.
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(e) In the event, and only to the extent, that (1) Class C
Shares are issued in more than one series and (2) Ohio law
permits the holders of a series of a class of capital stock to
vote separately as a class, the affirmative vote of the
holders of at least two-thirds of each series of Class C
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class C Shares
or of any shares ranking on a parity with or junior to the
Class C Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
Section 6. 8 3/8% Class C Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class C Shares, 400,000 shares are
designated as a series entitled "8 3/8% Class C Cumulative Redeemable Preferred
Shares" (hereinafter called "8 3/8% Class C Preferred Shares"). The 8 3/8% Class
C Preferred Shares shall have the express terms set forth in this Division as
being applicable to all Class C Shares as a class and, in addition, the
following express terms applicable to all 8 3/8% Class C Preferred Shares as a
series of Class C Shares:
(a) The annual dividend rate of the 8 3/8% Class C Preferred Shares
shall be 8 3/8% of the liquidation preference of $250.00 per share.
(b) Dividends on the 8 3/8% Class C Preferred Shares shall be payable,
if declared, quarterly on or about the fifteenth day of March, June,
September, and December each year, the first quarterly dividend being
payable, if declared, on September 15, 1998. The dividends payable for
each full quarterly dividend period on each 8 3/8% Class C Preferred
Shares shall be $5.234375.
Dividends for the initial dividend period on the 8 3/8% Class
C Preferred Shares, or for any period shorter or longer than a
full dividend period on the 8 3/8% Class C Preferred Shares,
shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The aggregate dividend payable quarterly
to each holder of 8 3/8% Class C Preferred Shares shall be
rounded to the nearest one one-hundredth of one cent with
$.00005 being rounded upward. Each dividend shall be payable
to the holders of record on such record date, no less than 10
nor more than 30 days preceding the payment date thereof, as
shall be fixed from time to time by the Corporation's Board of
Directors.
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(c) Dividends on 8 3/8% Class C Preferred Shares shall be cumulative as
follows:
(1) With respect to shares included in the initial issue of
8 3/8% Class C Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment
of the first dividend on the initial issue of 8 3/8% Class C
Preferred Shares, dividends shall be cumulative from the date
of the initial issue of 8 3/8% Class C Preferred Shares; and
(2) With respect to shares issued any time after the aforesaid
record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares,
except that if such shares are issued during the period
commencing the day after the record date for the payment of a
dividend on 8 3/8% Class C Preferred Shares and ending on the
payment date of that dividend, dividends with respect to such
shares shall be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's status as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended, the 8 3/8% Class C Preferred Shares may not be redeemed prior
to July 7, 2003. At any time or from time to time on and after July 7,
2003 the Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or any part
of the 8 3/8% Class C Preferred Shares at a redemption price of $250.00
per share plus, in each case, an amount equal to all dividends accrued
and unpaid thereon to the redemption date, without interest. The
redemption price (other than the portion thereof consisting of accrued
and unpaid dividends) is payable solely out of the sale proceeds of
other capital shares of the Corporation, which may include any equity
securities (including common shares and preferred shares), shares,
interests, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities), or options to purchase any of
the foregoing.
(e) The amount payable per 8 3/8% Class C Preferred Share in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation shall be $250.00, plus an amount
equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 8 3/8% Class C Preferred Shares,
at any time during which the Corporation is in default in the payment
of dividends on such 8 3/8% Class C Preferred Shares for any dividend
period, shall, for the purposes of Section 5(b)(1) of this Division
A-III, be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
IV. The Class D Cumulative Preferred Shares. The Class D Shares shall
have the following express terms:
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Section 1. Series. The Class D Shares may be issued from time
to time in one or more series. All Class D Shares shall be of
equal rank and shall be identical, except in respect of the
matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of a series shall be
identical with all other shares of such series, except as to
the dates from which dividends shall accrue and be cumulative.
All Class D Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class E
Shares and the Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class E
Shares and Noncumulative Shares except (1) in respect of the
matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Class A Shares, Class B
Shares, Class C Shares, Class D Shares and Class E Shares
shall be cumulative as set forth herein. Subject to the
provisions of Sections 2 through 5, both inclusive, and Item
VII of this Division, which provisions shall apply to all
Class D Shares, the Board of Directors hereby is authorized to
cause such shares to be issued in one or more series and, with
respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price
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or prices, any adjustments thereof and all other terms and
conditions upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item IV) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class D Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class D Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
D Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class D Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class E Shares and Noncumulative Shares then issued
and outstanding and entitled to receive such dividends.
(b) So long as any Class D Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Class D Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking
junior to the Class D Shares, nor shall any Common Shares or
any other shares ranking junior to the Class D Shares be
purchased, retired or otherwise acquired by the Corporation,
except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class D
Shares received by the Corporation subsequent to the date of
first issuance of Class D Shares of any series, unless:
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(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares, including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item IV.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption
retirement or other acquisition of, Common Shares or any other
shares ranking on a parity with or junior to the Class D
Shares shall be inapplicable to (i) any payments in lieu of
issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the
conversion of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item VIII(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section
857 of the Code), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders
of all classes of stock (the "Total Dividends"), then, to the
extent permissible under the Code and to the extent it does
not cause any dividends to fail to qualify for the dividends
paid deduction under Section 561 of the Code, the portion of
the Capital Gains Amount that shall be allocable to holders of
the Class D Shares shall be the amount that the total
dividends paid or made available to the holders of the Class D
Shares for the year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class D Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item IV; and
(2) Shall, from time to time, make such redemptions
of each series of Class D Shares as may be required to fulfill
the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price
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fixed in accordance with the provisions of Section 1 of this
Item IV; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class D
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item IV prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class D Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class D Shares so to be redeemed
amounts equal to the redemption price of the Class D Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class D Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class D Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank
or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any Class D Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class D Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital
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stock hereafter created or authorized, the Corporation may not
purchase or redeem (for sinking fund purposes or otherwise)
less than all of the Class D Shares then outstanding except in
accordance with a stock purchase offer made to all holders of
record of Class D Shares, unless all dividends on all Class D
Shares then outstanding for all previous and current dividend
periods shall have been declared and paid or funds therefor
set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class D Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class D Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item IV, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative
Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class D Shares of
the full preferential amounts as aforesaid, the holders of
Class D Shares, as such, shall have no right or claim to any
of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class D Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class D
Shares at the time outstanding, whether or not earned or
declared, for a number of consecutive dividend payment periods
which in the aggregate contain at least 540 days, all holders
of such Class D Shares, voting separately as a class, together
with all Class A Shares, Class B Shares,
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Class C Shares, Class E Shares and Noncumulative Shares upon
which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection
5(c), shall be entitled to elect, as herein provided, a total
of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class D Shares
shall not exercise such special class voting rights except at
meetings of such shareholders for the election of directors at
which the holders of not less than 50% of such Class D Shares
are present in person or by proxy; and provided further, that
the special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class D Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class D Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class D
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class D Shares for any
dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling holders of
Class D Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Class D Shares upon which such default in the
payment of dividends exists and notice thereof shall be given
in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class D Shares. At any meeting at
which such holders of Class D Shares shall be entitled to
elect directors, holders of 50% of such Class D Shares,
present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
D Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class D Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class D Shares shall be
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elected annually for terms expiring at the next succeeding
annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class D Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class D Shares are
entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class E Shares or
Noncumulative Shares are entitled to elect directors pursuant
hereto by reason of any default in the payment of dividends
thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the
Class E Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a
number of votes proportional to the aggregate liquidation
preference of its outstanding shares). In such case, the
holders of Class D Shares and of all such other shares then
entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other shares have
elected such directors prior to the happening of the default
or event permitting the holders of Class D Shares to elect
directors, or prior to a written request for the holding of a
special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class D Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class D Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose, shall be
necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class D Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class D Shares
or of any shares ranking on a parity with or junior to the
Class D Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the
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Corporation shall be deemed to affect adversely and materially
preferences or voting or other rights of the holders of Class
D Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class D Shares.
(e) In the event, and only to the extent, that (1) Class D
Shares are issued in more than one series and (2) Ohio law
permits the holders of a series of a class of capital stock to
vote separately as a class, the affirmative vote of the
holders of at least two-thirds of each series of Class D
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class D Shares
or of any shares ranking on a parity with or junior to the
Class D Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
Section 6. 8.68% Class D Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class D Shares, 230,000 shares are
designated as a series entitled "8.68% Class D Cumulative Redeemable Preferred
Shares" (hereinafter called "8.68% Class D Preferred Shares"). The 8.68% Class D
Preferred Shares shall have the express terms set forth in this Division as
being applicable to all Class D Shares as a class and, in addition, the
following express terms applicable to all 8.68% Class D Preferred Shares as a
series of Class D Shares:
(a) The annual dividend rate of the 8.68 % Class D Preferred Shares
shall be 8.68 % of the liquidation preference of $250.00 per share.
(b) Dividends on the 8.68 % Class D Preferred Shares shall be payable,
if declared, quarterly on or about the fifteenth day of March, June,
September, and December each year, the first quarterly dividend being
payable, if declared, on December 15, 1998 The dividends payable for
each full quarterly dividend period on each 8.68 % Class D Preferred
Shares shall be $5.425.
Dividends for the initial dividend period on the 8.68 % Class D Preferred
Shares, or for any period shorter or longer than a full dividend period on the
8.68 % Class D Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
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dividend payable quarterly to each holder of 8.68 % Class D Preferred Shares
shall be rounded to the nearest one one-hundredth of one cent with $.00005 being
rounded upward. Each dividend shall be payable to the holders of record on such
record date, no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation's Board of
Directors.
(c) Dividends on 8.68 % Class D Preferred Shares shall be cumulative as
follows:
(1) With respect to shares included in the initial issue of
8.68 % Class D Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment
of the first dividend on the initial issue of 8.68 % Class D
Preferred Shares, dividends shall be cumulative from the date
of the initial issue of 8.68 % Class D Preferred Shares; and
(2) With respect to shares issued any time after the aforesaid
record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such shares,
except that if such shares are issued during the period
commencing the day after the record date for the payment of a
dividend on 8.68 % Class D Preferred Shares and ending on the
payment date of that dividend, dividends with respect to such
shares shall be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's status as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended, the 8.68 % Class D Preferred Shares may not be redeemed prior
to August 20, 2003. At any time or from time to time on and after
August 20, 2003 the Corporation, at its option upon not less than
thirty (30) nor more than sixty (60) days' written notice, may redeem
all or any part of the 8.68 % Class D Preferred Shares at a redemption
price of $250.00 per share plus, in each case, an amount equal to all
dividends accrued and unpaid thereon to the redemption date, without
interest. The redemption price (other than the portion thereof
consisting of accrued and unpaid dividends) is payable solely out of
the sale proceeds of other capital shares of the Corporation, which may
include any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities), or options to
purchase any of the foregoing.
(e) The amount payable per 8.68 % Class D Preferred Share in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation shall be $250.00, plus an amount
equal to all dividends accrued and unpaid thereon to the date of
payment.
(f) All dividend payments made on the 8.68 % Class D Preferred Shares,
at any time during which the Corporation is in default in the payment
of dividends on such 8.68 % Class D Preferred Shares for any dividend
period, shall, for the purposes of Section 5(b)(1) of this Division
A-IV, be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.
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V. The Class E Cumulative Preferred Shares. The Class E Shares shall
have the following express terms:
Section 1. Series. The Class E Shares may be issued from time
to time in one or more series. All Class E Shares shall be of
equal rank and shall be identical, except in respect of the
matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of a series shall be
identical with all other shares of such series, except as to
the dates from which dividends shall accrue and be cumulative.
All Class E Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D
Shares and the Noncumulative Shares and shall be identical to
all Class A Shares, Class B Shares, Class C Shares, Class D
Shares and Noncumulative Shares except (1) in respect of the
matters that may be fixed by the Board of Directors as
provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Class A Shares, Class B
Shares, Class C Shares, Class D Shares and Class E Shares
shall be cumulative as set forth herein. Subject to the
provisions of Sections 2 through 5, both inclusive, and Item
VII of this Division, which provisions shall apply to all
Class E Shares, the Board of Directors hereby is authorized to
cause such shares to be issued in one or more series and, with
respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
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(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item V) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class E Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class E Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
E Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class E Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class D Shares and Noncumulative Shares then issued
and outstanding and entitled to receive such dividends.
(b) So long as any Class E Shares shall be outstanding no
dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Class E Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking
junior to the Class E Shares, nor shall any Common Shares or
any other shares ranking junior to the Class E Shares be
purchased, retired or otherwise acquired by the Corporation,
except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Class E
Shares received by the Corporation subsequent to the date of
first issuance of Class E Shares of any series, unless:
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(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares, including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item V.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption
retirement or other acquisition of, Common Shares or any other
shares ranking on a parity with or junior to the Class E
Shares shall be inapplicable to (i) any payments in lieu of
issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the
conversion of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item VIII(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section
857 of the Code), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders
of all classes of stock (the "Total Dividends"), then, to the
extent permissible under the Code and to the extent it does
not cause any dividends to fail to qualify for the dividends
paid deduction under Section 561 of the Code, the portion of
the Capital Gains Amount that shall be allocable to holders of
the Class E Shares shall be the amount that the total
dividends paid or made available to the holders of the Class E
Shares for the year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Class E Shares at the time outstanding at the applicable
redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item V; and
(2) Shall, from time to time, make such redemptions
of each series of Class E Shares as may be required to fulfill
the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price
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fixed in accordance with the provisions of Section 1 of this
Item V; and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Class E
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item V prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class E Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class E Shares so to be redeemed
amounts equal to the redemption price of the Class E Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class E Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class E Shares which have been
called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof,
any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank
or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any Class E Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class E Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital
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45
stock hereafter created or authorized, the Corporation may not
purchase or redeem (for sinking fund purposes or otherwise)
less than all of the Class E Shares then outstanding except in
accordance with a stock purchase offer made to all holders of
record of Class E Shares, unless all dividends on all Class E
Shares then outstanding for all previous and current dividend
periods shall have been declared and paid or funds therefor
set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class E Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class E Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item V, plus an amount equal
to all dividends accrued and unpaid thereon to the date of
payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares and Noncumulative
Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class E Shares of
the full preferential amounts as aforesaid, the holders of
Class E Shares, as such, shall have no right or claim to any
of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class E Shares shall have no voting rights,
except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Class E
Shares at the time outstanding, whether or not earned or
declared, for a number of consecutive dividend payment periods
which in the aggregate contain at least 540 days, all holders
of such Class E Shares, voting separately as a class, together
with all Class A Shares, Class B Shares,
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46
Class C Shares, Class D Shares and Noncumulative Shares upon
which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection
5(c), shall be entitled to elect, as herein provided, a total
of two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Class E Shares
shall not exercise such special class voting rights except at
meetings of such shareholders for the election of directors at
which the holders of not less than 50% of such Class E Shares
are present in person or by proxy; and provided further, that
the special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class E Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class E Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class E
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class E Shares for any
dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling holders of
Class E Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Class E Shares upon which such default in the
payment of dividends exists and notice thereof shall be given
in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 90
days after the date of receipt of the foregoing written
request from the holders of Class E Shares. At any meeting at
which such holders of Class E Shares shall be entitled to
elect directors, holders of 50% of such Class E Shares,
present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Class
E Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated
Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Class E Shares pursuant to this Subsection
shall serve in addition to any other directors then in office
or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected
by such holders of Class E Shares shall be
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47
elected annually for terms expiring at the next succeeding
annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Class E Shares in respect of
elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Class E Shares are
entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares or
Noncumulative Shares are entitled to elect directors pursuant
hereto by reason of any default in the payment of dividends
thereon, then the voting rights of the Class A Shares, the
Class B Shares, the Class C Shares, the Class D Shares, the
Class E Shares and the Noncumulative Shares then entitled to
vote shall be combined (with each class of shares having a
number of votes proportional to the aggregate liquidation
preference of its outstanding shares). In such case, the
holders of Class E Shares and of all such other shares then
entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other shares have
elected such directors prior to the happening of the default
or event permitting the holders of Class E Shares to elect
directors, or prior to a written request for the holding of a
special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class E Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Class E Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose, shall be
necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Class E Shares which
are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class E Shares
or of any shares ranking on a parity with or junior to the
Class E Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the
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48
Corporation shall be deemed to affect adversely and materially
preferences or voting or other rights of the holders of Class
E Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class E Shares.
(e) In the event, and only to the extent, that (1) Class E
Shares are issued in more than one series and (2) Ohio law
permits the holders of a series of a class of capital stock to
vote separately as a class, the affirmative vote of the
holders of at least two-thirds of each series of Class E
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class E Shares
or of any shares ranking on a parity with or junior to the
Class E Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
VI. The Noncumulative Preferred Shares. The Noncumulative Preferred
Shares shall have the following express terms:
Section 1. Series. The Noncumulative Shares may be issued from
time to time in one or more series. All Noncumulative Shares
shall be of equal rank and shall be identical, except in
respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of a series
shall be identical with all other shares of such series,
except as to the dates on which and the periods for which
dividends may be payable. All Noncumulative Shares shall rank
on a parity with the Class A Shares, the Class B Shares, the
Class C Shares, the Class D Shares and the Class E Shares, and
shall be identical to all Class A Shares, Class B Shares,
Class C Shares, Class D Shares and Class E Shares, except (1)
in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive,
of this Section 1 and (2) only dividends on the Noncumulative
Shares are noncumulative as set forth herein. Subject to the
provisions of Sections 2 through 5, inclusive, and Item VII of
this Division, which provisions shall apply to all
Noncumulative Shares, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more
series, and with respect to each such series, to determine and
fix prior to the issuance thereof (and thereafter, to the
extent provided in clause (b) of this Section) the following:
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49
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The dates on which and the period or periods for
which dividends, if declared, shall be payable, including the
means by which such dates and periods may be established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item VI) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), both inclusive, of this Section and is authorized to take such
actions with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Noncumulative Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Noncumulative Shares,
shall be entitled to receive out of any funds legally
available therefor, if, when and as declared by the Board of
Directors, dividends in cash at the rate or rates for such
series fixed in accordance with the provisions of Section 1
above and no more, payable on the dates fixed for such series.
Such
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50
dividends shall accrue, in the case of shares of each
particular series, from and after the date or dates fixed with
respect to such series; provided, however, that if the Board
of Directors fails to declare a dividend payable on a dividend
payment date on any Noncumulative Shares, the holders of the
Noncumulative Shares shall have no right to receive a dividend
in respect of the dividend period ending on such dividend
payment date, and the Corporation shall have no obligation to
pay the dividend accrued for such period, whether or not
dividends on such Noncumulative Shares are declared payable on
any future dividend payment date. No dividends shall be paid
upon or declared or set apart for any series of the
Noncumulative Shares for any dividend period unless at the
same time (i) a like proportionate dividend for the then
current dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall have
been paid upon or declared or set apart for all Noncumulative
Shares of all series then issued and outstanding and entitled
to receive such dividend and (ii) the dividends payable for
the dividend periods terminating on the same or any earlier
date, ratably in proportion to the respective dividend rates
fixed therefor, shall have been paid upon or declared or set
apart for all Class A Shares, Class B Shares, Class C Shares,
Class D Shares and Class E Shares then issued and outstanding
and entitled to receive such dividends.
(b) So long as any Noncumulative Shares shall be outstanding
no dividend, except a dividend payable in Common Shares or
other shares ranking junior to the Noncumulative Shares, shall
be paid or declared or any distribution be made, except as
aforesaid, in respect of the Common Shares or any other shares
ranking junior to the Noncumulative Shares, nor shall any
Common Shares or any other shares ranking junior to the
Noncumulative Shares be purchased, retired or otherwise
acquired by the Corporation, except out of the proceeds of the
sale of Common Shares or other shares of the Corporation
ranking junior to the Noncumulative Shares received by the
Corporation subsequent to the date of first issuance of
Noncumulative Shares of any series, unless:
(1) All accrued and unpaid dividends on Class A
Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart;
(2) All unpaid dividends on Noncumulative Shares for
the then current dividend period shall have been declared and
paid or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares or Noncumulative Shares of any
series from any sinking fund provided for shares of such
series in accordance with the provisions of Section 1 of this
Item VI.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption
retirement or other acquisition of, Common
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Shares or any other shares ranking on a parity with or junior
to the Noncumulative Shares shall be inapplicable to (i) any
payments in lieu of issuance of fractional shares thereof,
whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares or
Noncumulative Shares into Common Shares or (iii) the exercise
by the Corporation of its rights pursuant to Item VIII(d) of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation with respect to any other class or
series of capital stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section
857 of the Code), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders
of all classes of stock (the "Total Dividends"), then, to the
extent permissible under the Code and to the extent it does
not cause any dividends to fail to qualify for the dividends
paid deduction under Section 561 of the Code, the portion of
the Capital Gains Amount that shall be allocable to holders of
the Noncumulative Shares shall be the amount that the total
dividends paid or made available to the holders of the
Noncumulative Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Noncumulative Shares at the time outstanding at the
applicable redemption price for such series fixed in
accordance with the provisions of Section 1 of this Item VI;
and
(2) Shall, from time to time, make such redemptions
of each series of Noncumulative Shares as may be required to
fulfill the requirements of any sinking fund provided for
shares of such series at the applicable sinking fund
redemption price fixed in accordance with the provisions of
Section 1 of this Item VI; and shall, in each case, pay all
unpaid dividends for the then current dividend period to the
redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Noncumulative
Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item VI prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Noncumulative Shares to be redeemed, together with accrued and
unpaid dividends thereon for the then current dividend period
to the redemption date, with any bank or trust company in
Cleveland, Ohio, or New York, New York, having capital and
surplus of not less than $100,000,000, named
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52
in such notice and direct that there be paid to the respective
holders of the Noncumulative Shares so to be redeemed amounts
equal to the redemption price of the Noncumulative Shares so
to be redeemed together with such accrued and unpaid dividends
thereon for the then current dividend period, on surrender of
the share certificate or certificates held by such holders;
and upon the deposit of such notice in the mail and the making
of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such
shares; and from and after the time such notice shall have
been so deposited and such deposit of money shall have been so
made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right
to receive such money from such bank or trust company without
interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all
of the outstanding Noncumulative Shares are to be redeemed,
the Corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Noncumulative Shares which have
been called for redemption shall not within six years after
such deposit claim the amount deposited for the redemption
thereof, any such bank or trust company shall, upon demand,
pay over to the Corporation such unclaimed amounts and
thereupon such bank or trust company and the Corporation shall
be relieved of all responsibility in respect thereof and to
such holders.
(c) Any Noncumulative Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Noncumulative Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item VIII of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) of less than all of the
Noncumulative Shares then outstanding except in accordance
with a stock purchase offer made to all holders of record of
Noncumulative Shares, unless all dividends on all
Noncumulative Shares then outstanding for the then current
dividend period shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Noncumulative Shares of any series
shall be entitled to receive in full out of the assets of the
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Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Noncumulative Shares,
the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item VI, plus an amount
equal to all dividends accrued and unpaid thereon for the then
current dividend period to the date of payment of the amount
due pursuant to such liquidation, dissolution or winding up of
the affairs of the Corporation. In the event the net assets of
the Corporation legally available therefor are insufficient to
permit the payment upon all outstanding Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares and
Noncumulative Shares of the full preferential amount to which
they are respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Noncumulative Shares
in proportion to the full preferential amount to which each
such share is entitled.
(2) After payment to the holders of Noncumulative
Shares of the full preferential amounts as aforesaid, the
holders of Noncumulative Shares, as such, shall have no right
or claim to any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Noncumulative Shares shall have no voting
rights, except as provided in this Section or required by law.
(b)(1) If, and so often as, the Corporation shall not have
fully paid, or shall not have declared and set aside a sum
sufficient for the payment of, dividends on any series of
Noncumulative Shares at the time outstanding, for a number of
consecutive dividend payment periods which in the aggregate
contain at least 540 days, the holders of such Noncumulative
Shares, voting separately as a class, together with all Class
A Shares, Class B Shares, Class C Shares, Class D Shares and
Class E Shares upon which like voting rights have been
conferred and are exercisable, shall be entitled to elect, as
herein provided, two members of the Board of Directors of the
Corporation; provided, however, that the holders of such
Noncumulative Shares shall not exercise such special class
voting rights except at meetings of such shareholders for the
election of directors at which the holders of not less than
50% of such Noncumulative Shares are present in person or by
proxy; and provided further, that the special class voting
rights provided for in this paragraph when the same shall have
become vested shall remain so vested until the Corporation
shall have fully paid, or shall have set aside a sum
sufficient for the payment of, dividends on such Noncumulative
Shares then outstanding for a number of consecutive dividend
payment periods which in the aggregate contain at least 360
days, whereupon the holders of such Noncumulative Shares shall
be
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divested of their special class voting rights in respect of
subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified
in this paragraph.
(2) In the event of default entitling holders of
Noncumulative Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Noncumulative Shares upon which such default
in the payment of dividends exists and notice thereof shall be
given in the same manner as that required for the annual
meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting
if the annual meeting of shareholders shall be called to be
held within 90 days after the date of receipt of the foregoing
written request from the holders of Noncumulative Shares. At
any meeting at which such holders of Noncumulative Shares
shall be entitled to elect directors, holders of 50% of such
Noncumulative Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders
of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to
elect the members of the Board of Directors which such holders
of Noncumulative Shares are entitled to elect as herein
provided. Notwithstanding any provision of these Amended and
Restated Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the
holders of any class of shares fixing the number of directors
of the Corporation, the two directors who may be elected by
such holders of Noncumulative Shares pursuant to this
Subsection shall serve in addition to any other directors then
in office or proposed to be elected otherwise than pursuant to
this Subsection. Nothing in this Subsection shall prevent any
change otherwise permitted in the total number of or
classifications of directors of the Corporation nor require
the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the
two directors elected by such holders of Noncumulative Shares
shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Noncumulative Shares in respect
of elections of directors as provided in this Subsection, the
terms of office of all directors then in office elected by
such holders shall terminate immediately thereupon. If the
office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred.
(c) If at any time when the holders of Noncumulative Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares and Class E
Shares, are entitled to elect directors pursuant hereto by
reason of any default in
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the payment of dividends thereon, then the voting rights of
the Class A Shares, the Class B Shares, the Class C Shares,
the Class D Shares, the Class E Shares and Noncumulative
Shares then entitled to vote shall be combined (with class of
shares having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Noncumulative Shares and of all such
other shares then entitled so to vote, voting as a class,
shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of
the default or event permitting the holders of Noncumulative
Shares to elect directors, or prior to a written request for
the holding of a special meeting being received by the
Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Noncumulative Shares voting together as a single class for
such directors, resulting in the termination of the term of
such previously elected directors upon the election of such
new directors.
(d) The affirmative vote of the holders of at least two-thirds
of the Noncumulative Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose, shall be
necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of Noncumulative Shares
which are set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Noncumulative
Shares or of any shares ranking on a parity with or junior to
the Noncumulative Shares nor the amendment of the provisions
of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed
to affect adversely and materially preferences or voting or
other rights of the holders of Noncumulative Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such
Noncumulative Shares.
(e) In the event, and only to the extent, that (1)
Noncumulative Shares are issued in more than one series and
(2) Ohio law permits the holders of a series of a class of
capital stock to vote separately as a class, the affirmative
vote of the holders of at least two-thirds of each series of
the Noncumulative Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose of voting on
such matters, shall be required for any amendment, alteration
or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles
of Incorporation, as amended, or of the Code of Regulations of
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the Corporation which affects adversely and materially the
preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated Articles
of Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Noncumulative
Shares or of any shares remaining on a parity with or junior
to the Noncumulative Shares nor the amendment of the
provisions of the Code of Regulations so as to change the
number or classification of directors of the Corporation shall
be deemed to affect adversely and materially preferences or
voting or other rights of the holder of such series.
VII. Definitions. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to"
Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares, such reference
shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation are given preference over
the rights of the holders of Class A Shares, Class B Shares,
Class C Shares, Class D Shares, Class E Shares or
Noncumulative Shares, as the case may be;
(b) Whenever reference is made to shares "on a parity with"
Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares, such reference
shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation rank equally (except as
to the amounts fixed therefor) with the rights of the holders
of Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares, as the case
may be; and
(c) Whenever reference is made to shares "ranking junior to"
Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares, such reference
shall mean and include all shares of the Corporation other
than those defined under Subsections (a) and (b) of this
Section as shares "ranking prior to" or "on a parity with"
Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares or Noncumulative Shares, as the case
may be.
VIII. Restrictions on Transfer to Preserve Tax Benefit; Shares Subject
to Redemption.
(a) Definitions. For the purposes of this Item VIII of this
Division A of this Article FOURTH, the following terms shall
have the following meanings:
"Beneficial Ownership" shall mean ownership of Preferred
Shares by a Person who would be treated as an owner of such
Preferred Shares either directly or constructively through the
application of Section 544 of the Code, as modified by
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Section 856(h) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Constructive Ownership" shall mean ownership of Preferred
Shares by a Person who would be treated as an owner of such
Preferred Shares either directly or constructively through the
application of Section 318 of the Code, as modified by Section
856(d)(5) of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have
the correlative meanings.
"Excess Preferred Shares" shall mean any Preferred Shares (i)
acquired or proposed to be acquired by any Person pursuant to
a Transfer to the extent that, if effective, such Transfer
would result in the transferee either Beneficially Owning
Preferred Shares or Constructively Owning Preferred Shares in
excess of the Ownership Limit, or (ii) which are the subject
of a Transfer that, if effective, which would result in the
Corporation being "closely held" within the meaning of Section
856(h) of the Code.
"Market Price" shall mean, with respect to any series of any
class of Preferred Shares, the last reported sales price of
such series reported on the New York Stock Exchange on the
trading day immediately preceding the relevant date or, if
shares of such series are not then traded on the New York
Stock Exchange, the last reported sales price of shares of
such series on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system
over which the shares of such series may be traded, or if
shares of such series are not then traded over any exchange or
quotation system, then the market price of shares of such
series on the relevant date as determined in good faith by the
Board of Directors of the Corporation.
"Ownership Limit" shall mean, with respect to each series of
each class of Preferred Shares, 9.8% of the outstanding shares
of such series.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust
permanently set aside for or to be used exclusively for the
purposes described in Section 642(c) of the Code, an
association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other
entity or a group as that term is used for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended;
provided, however, that a "person" does not mean an
underwriter which participates in a public offering of
Preferred Shares, for a period of 35 days following the
purchase by such underwriter of such Preferred Shares.
"Preferred Shares" shall mean, collectively, Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares
and Noncumulative Shares.
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"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Preferred Shares (including,
without limitation, (i) the granting of any option or entering
into any agreement for the sale, transfer or other disposition
of Preferred Shares or (ii) the sale, transfer, assignment or
other disposition of any securities or rights convertible into
or exchangeable for Preferred Shares), whether voluntary or
involuntary, whether of record or beneficially and whether by
operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section (i) of this Item
VIII of this Division A of this Article FOURTH, no Person
shall Beneficially Own or Constructively Own shares of any
series of any class of Preferred Shares in excess of the
Ownership Limit applicable to such series.
(ii) Except as provided in Section (i) of this Item
VIII of this Division A of this Article FOURTH, any Transfer
that, if effective, would result in any Person Beneficially
Owning shares of any series of any class of Preferred Shares
in excess of the Ownership Limit applicable to such series
shall be void ab initio as to the Transfer of such Preferred
Shares which would be otherwise Beneficially Owned by such
Person in excess of such Ownership Limit, and the intended
transferee shall acquire no rights in such Preferred Shares.
(iii) Except as provided in Section (i) of this Item
VIII of this Division A of this Article FOURTH, any Transfer
that, if effective, would result in any Person Constructively
Owning shares of any series of any class of Preferred Shares
in excess of the Ownership Limit applicable to such series
shall be void ab initio as to the Transfer of such Preferred
Shares which would be otherwise Constructively Owned by such
Person in excess of such amount, and the intended transferee
shall acquire no rights in such Preferred Shares.
(iv) Notwithstanding any other provisions contained
in this Item VIII, any Transfer (whether or not such Transfer
is the result of a transaction entered into through the
facilities of the New York Stock Exchange) or other event
that, if effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h) of the
Code, or would otherwise result in the Corporation failing
to qualify as a REIT (including, but not limited to, a
Transfer or other event that would result in the Corporation
owning (directly or Constructively) an interest in a tenant
that is described in Section 856(d)(2)(B) of the Code if the
income derived by the Corporation from such tenant would cause
the Corporation to fail to satisfy any of the gross income
requirement of Section 856(c) of the Code) shall be void ab
initio as to the Transfer of the Preferred Shares or other
event which would cause the Corporation to be "closely held"
within the meaning of Section 856(h) of the Code or would
otherwise result in the Corporation failing
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to qualify as a REIT; and the intended transferee or owner or
Constructive or Beneficial Owner shall acquire or retain no
rights in such Preferred Shares.
(v) For purposes of construing the foregoing
provisions, any attempt to transfer Preferred Shares in
violation of the Ownership Limit applicable to the series of
the class of such Preferred Shares (as such Ownership Limit
may be modified by the Board of Directors pursuant to Section
(h) of Item VIII) shall be construed as causing such Preferred
Shares to be transferred by operation of law to the
Corporation as trustee of a trust for the exclusive benefit of
the person or persons to whom such Preferred Shares can
ultimately be transferred without violating the Ownership
Limit and any Excess Preferred Shares while held in such trust
shall not have any voting rights, shall not be considered for
purposes of any shareholder vote or for determining a quorum
for such a vote, and shall not be entitled to any dividends or
other distributions.
(c) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a
Transfer has taken place in violation of Section (b) of Item
VIII of this Division A of this Article FOURTH or that a
Person intends to acquire or has attempted to acquire
beneficial ownership (determined without reference to any
rules of attribution), Beneficial Ownership or Constructive
Ownership of any Preferred Shares of the Corporation in
violation of Section (b) of Item VIII of this Division A of
this Article FOURTH, or that any such Transfer, intended or
attempted acquisition or acquisition would jeopardize the
status of the Corporation as a REIT under the Code, the Board
of Directors or its designees shall take such actions as it
deems advisable to refuse to give effect or to prevent such
Transfer, including, but not limited to, refusing to give
effect to such Transfer on the books of the Corporation or
instituting proceedings to enjoin such Transfer and, in
addition, exercising its rights under Section (d) of Item VIII
of this Division A of Article FOURTH.
(d) Purchase Right in Excess Preferred Shares. Beginning on
the date of the occurrence of a Transfer which, if
consummated, in the good faith judgment of the Board of
Directors of the Corporation, could result in Excess Preferred
Shares the Excess Preferred Shares, subject to such transfer
shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to
the lesser of (i) the price per share in the transaction that
created such Excess Preferred Shares (or, in the case of a
devise or gift, the Market Price at the time of such devise or
gift) and (ii) the Market Price on the date the Corporation,
or its designee, accepts such offer. The Corporation shall
have the right to accept such offer for a period of 90 days
after the later of (i) the date of such Transfer and (ii) if
the Corporation does not receive a notice of such Transfer
pursuant to Section (e) of Item VIII of this Division A of
this Article FOURTH, the date the Board of Directors
determines in good faith that such Transfer has occurred.
Prompt payment of the purchase price shall be made in such
reasonable manner as may be determined by the Corporation.
From and after the date fixed for purchase by the Corporation,
and so long as payment of the purchase price for the Excess
Preferred Shares to be so purchased shall have been made or
duly provided for,
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the holder of any Excess Preferred Shares so called for
purchase shall cease to be entitled to dividends,
distributions, voting rights and other benefits with respect
to such Excess Preferred Shares, excepting only the right to
payment of the purchase price fixed as aforesaid. Any dividend
or distribution paid to a proposed transferee of Excess
Preferred Shares prior to the discovery by the Corporation
that the Excess Preferred Shares have been transferred in
violation of Section (b) of Item VIII of this Division A of
this Article FOURTH shall be repaid to the Corporation upon
demand. If the foregoing provisions are determined to be void
or invalid by virtue of any legal decision, statute, rule or
regulation, then the intended transferee of such Excess
Preferred Shares shall be deemed, at the option of the
Corporation, to have acted as agent on behalf of the
Corporation in acquiring such Excess Preferred Shares and to
hold such Excess Preferred Shares on behalf of the
Corporation.
(e) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire Preferred Shares or other securities in
violation of subparagraph (b) of this Item VIII, or any Person
who owns or will own Excess Preferred Shares as a result of an
event under subparagraph (b) of this Item VIII, shall
immediately give written notice to the Corporation of such
event and shall provide to the Corporation such other
information as the Corporation may request in order to
determine the effect, if any, of such Transfer or attempted
Transfer or other event on the Corporation's status as a REIT.
(f) Owners Required to Provide Information. From and after the
date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0% (or such
other percentage, between 0.5% and 5.0%, as provided in the
regulations promulgated pursuant to the Code) of the
outstanding Preferred Shares of the Corporation shall, within
30 days after January 1 of each year, give written notice to
the Corporation stating the name and address of such
Beneficial Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such Beneficial
Owner shall provide to the Corporation such additional
information as the Corporation may request in order to
determine the effect, if any, of such Beneficial Ownership on
the Corporation's status as a REIT.
(ii) each Person who is a Beneficial Owner or
Constructive Owner of Preferred Shares and each Person
(including the shareholder of record) who is holding Preferred
Shares for a Beneficial Owner or Constructive Owner shall
provide to the Corporation such information that the
Corporation may request, in good faith, in order to determine
the Corporation's status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Division A
of this Article FOURTH shall limit the authority of the Board
of Directors to take such other action as it deems necessary
or advisable to protect the Corporation and the interests of
its shareholders by preservation of the Corporation's status
as a REIT.
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(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of Item VIII of this Division A of
this Article FOURTH, including any definition contained in
Section (a) of Item VIII, the Board of Directors shall have
the power to determine the application of the provisions of
this Item VIII with respect to any situation based on the
facts known to it.
(i) Exceptions.
(i) Subject to Section (b)(iv) of this Item VIII of
this Division A, the Board of Directors may exempt a Person
from the Ownership Limit applicable to a series of a class of
Preferred Shares if such Person is not an individual (other
than pension plans described in Section 856(h)(3)) for
purposes of Section 542(a)(2) of the Code if the Board of
Directors obtains such representations and undertakings from
such Person as are reasonably necessary to ascertain that no
individual's Beneficial Ownership of such Preferred Shares
will violate the Ownership Limit, and agrees that any
violation or attempted violation will result in such Preferred
Shares in excess of the Ownership Limit being subject to
repurchase by the Corporation as set forth in Section (d) of
Item VIII of this Division A of this Article FOURTH.
(ii) The Board of Directors may exempt a Person from
the limitation on such Person Constructively Owning Preferred
Shares in excess of the Ownership Limit applicable to a series
of a class of such Preferred Shares if such Person does not
own and represents that it will not own, directly or
constructively (by virtue of the application of Section 318 of
the Code, as modified by Section 856(d)(5) of the Code), more
than a 9.8% interest (as set forth in Section 856(d)(2)(B)) in
a tenant of any real property owned or leased by the
Corporation, if the Board of Directors obtains such
representations and undertakings from such Person as are
reasonably necessary to ascertain this fact and agrees that
any violation or attempted violation will result in such
Preferred Shares in excess of the Ownership Limit being deemed
to be Excess Preferred Shares and subject to repurchase by the
Corporation as set forth in Section (d) of Item VIII of this
Division A of this Article FOURTH.
IX. Legend. Each certificate for Preferred Shares shall bear the
following legend:
"The Preferred Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own or Constructively Own shares of
any series of any class of Preferred Shares in excess of 9.8% of the outstanding
Preferred Shares of such series. Any Person who attempts to Beneficially Own or
Constructively Own shares of any series of any class of Preferred Shares in
excess of the above limitations must immediately notify the Corporation. All
capitalized terms in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Preferred Shares
represented hereby may be subject to
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repurchase by the Corporation on the terms and conditions set forth in the
Corporation's Articles of Incorporation.
DIVISION B
Subject to the terms of the Class A Cumulative Preferred Shares, the
Class B Cumulative Preferred Shares, the Class C Cumulative Preferred Shares,
the Class D Cumulative Preferred Shares, the Class E Cumulative Preferred Shares
and the Noncumulative Preferred Shares, the Common Shares shall have the
following express terms:
Section 1. Dividend Rights. The holders of Common Shares shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Corporation, out of the assets of the Corporation which are by law available
therefor, dividends or distributions payable in cash, in property or in
securities of the Corporation.
Section 2. Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution of
the assets of, the Corporation, each holder of Common Shares shall be entitled
to receive, ratably with each other holder of Common Shares, that portion of the
assets of the Corporation available for distribution to its shareholders as the
number of Common Shares held by such holder bears to the total number of Common
Shares then outstanding.
Section 3. Voting Rights. The holders of Common Shares shall be
entitled to vote on all matters (for which holders of Common Shares shall be
entitled to vote thereon) at all meetings of the shareholders of the
Corporation, and shall be entitled to one vote for each Common Share entitled to
vote at such meeting.
Section 4. Restrictions on Transfer to Preserve Tax Benefit; Common
Shares Subject to Redemption.
(a) Definitions. For the purposes of this Section 4 of this
Division B of this Article FOURTH, the following terms shall
have the following meanings:
"Beneficial Ownership" shall mean ownership of Common Shares
by a Person who would be treated as an owner of such Common
Shares either directly or constructively through the
application of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Constructive Ownership" shall mean ownership of Common Shares
by a Person who would be treated as an owner of such Common
Shares either directly or Constructively through the
application of Section 318 of the Code, as modified by Section
856(d)(5) of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have
the correlative meanings.
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"Excess Shares" shall mean any Common Shares (i) acquired or
proposed to be acquired by any Person (other than an Existing
Holder) pursuant to a Transfer to the extent that, if
effective, such Transfer would result in the transferee either
(A) Beneficially Owning Common Shares in excess of the
Ownership Limit or (B) Constructively Owning Common Shares in
excess of the Related Party Limit, (ii) acquired or proposed
to be acquired by an Existing Holder pursuant to a Transfer to
the extent that, if effective, such Transfer would result in
such Existing Holder Beneficially Owning Common Shares in
excess of the Existing Holder Limit for such Existing Holder,
or (iii) which are the subject of a Transfer that, if
effective, which would result in (A) the Common Shares being
owned by fewer than 100 Persons (determined without reference
to any rules of attribution), or (B) the Corporation being
"closely held" within the meaning of Section 856(h) of the
Code.
"Existing Holder" shall mean (i) Bert L. Wolstein, (ii) Scott
A. Wolstein, (iii) James A. Schoff, and (iv) any Person to
whom an Existing Holder Transfers Beneficial Ownership of
Common Shares causing such transferee to Beneficially Own
Common Shares in excess of the Ownership Limit.
"Existing Holder Limit" (i) for any Existing Holder who is an
Existing Holder by virtue of clause (i), (ii) or (iii) of the
definition thereof, shall mean, initially, the percentage of
the outstanding Common Shares Beneficially Owned by such
Existing Holder upon the consummation of the Initial Public
Offering, and after any adjustment pursuant to Section (4)(i)
of this Division B of this Article FOURTH, shall mean such
percentage of the outstanding Common Shares as so adjusted;
and (ii) for any Existing Holder who becomes an Existing
Holder by virtue of clause (iv) of the definition thereof,
shall mean, initially, the percentage of the outstanding
Common Shares Beneficially Owned by such Existing Holder at
the time that such Existing Holder becomes an Existing Holder,
and after any adjustment pursuant to Section 4(i) of this
Division B of this Article FOURTH, shall mean such percentage
of the outstanding Common Shares as so adjusted. From and
after the date of the Initial Public Offering, the secretary
of the Corporation shall maintain and, upon request, make
available to each Existing Holder, a schedule which sets forth
the then current Existing Holder Limits for each Existing
Holder.
"Initial Public Offering" means the sale of Common Shares
pursuant to the Corporation's first effective registration
statement for such Common Shares filed under the Securities
Act of 1933, as amended.
"Market Price" shall mean the last reported sales price of
Common Shares reported on the New York Stock Exchange on the
trading day immediately preceding the relevant date or, if the
Common Shares are not then traded on the New York Stock
Exchange, the last reported sales price of the Common Shares
on the trading day immediately preceding the relevant date as
reported on any exchange or quotation system over which the
Common Shares may be traded, or if the Common Shares are not
then traded over any exchange or quotation system,
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then the market price of the Common Shares on the relevant
date as determined in good faith by the Board of Directors of
the Corporation.
"Ownership Limit" shall mean 5.0% of the outstanding Common
Shares of the Corporation.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust
permanently set aside for or to be used exclusively for the
purposes described in Section 642(c) of the Code, an
association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other
entity or a group as that term is used for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended;
provided, however, that a "Person" does not mean an
underwriter which participates in a public offering of the
Common Shares, for a period of 35 days following the purchase
by such underwriter of the Common Shares.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
"Related Party Limit" shall mean 9.8% of the outstanding
Common Shares of the Corporation.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Common Shares (including,
without limitation, (i) the granting of any option or entering
into any agreement for the sale, transfer or other disposition
of Common Shares or (ii) the sale, transfer, assignment or
other disposition of any securities or rights convertible into
or exchangeable for Common Shares), whether voluntary or
involuntary, whether of record or beneficially and whether by
operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, no Person (other than an Existing
Holder) shall Beneficially Own Common Shares in excess of the
Ownership Limit and no Existing Holder shall Beneficially Own
Common Shares in excess of the Existing Holder Limit for such
Existing Holder.
(ii) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that, if effective,
would result in any Person (other than an Existing Holder)
Beneficially Owning Common Shares in excess of the Ownership
Limit shall be void ab initio as to the Transfer of such
Common Shares which would be otherwise Beneficially Owned by
such Person in excess of the Ownership Limit, and the intended
transferee shall acquire no rights in such Common Shares.
(iii) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that,
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if effective, would result in any Existing Holder Beneficially
Owning Common Shares in excess of the applicable Existing
Holder Limit shall be void ab initio as to the Transfer of
such Common Shares which would be otherwise Beneficially Owned
by such Existing Holder in excess of the applicable Existing
Holder Limit, and such Existing Holder shall acquire no rights
in such Common Shares.
(iv) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that, if effective,
would result in any Person Constructively Owning Common Shares
in excess of the Related Party Limit shall be void ab initio
as to the Transfer of such Common Shares which would be
otherwise Constructively Owned by such Person in excess of
such amount, and the intended transferee shall acquire no
rights in such Common Shares.
(v) Except as provided in Section 4(i) of this
Division B of this Article FOURTH, from and after the date of
the Initial Public Offering, any Transfer that, if effective,
would result in the Common Shares being beneficially owned by
less than 100 Persons (determined without reference to any
rules of attribution) shall be void ab initio as to the
Transfer of such Common Shares which would be otherwise
beneficially owned by the transferee, and the intended
transferee shall acquire no rights in such Common Shares.
(vi) From and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in the
Corporation being "closely held" within the meaning of Section
856(h) of the Code shall be void ab initio as to the Transfer
of the Common Shares which would cause the Corporation to be
"closely held" within the meaning of Section 856(h) of the
Code, and the intended transferee shall acquire no rights in
such Common Shares.
(c) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a
Transfer has taken place in violation of Section 4(b) of this
Division B of this Article FOURTH or that a Person intends to
acquire or has attempted to acquire beneficial ownership
(determined without reference to any rules of attribution),
Beneficial Ownership or Constructive Ownership of any Common
Shares of the Corporation in violation of Section 4(b) of this
Division B of this Article FOURTH, or that any such Transfer,
intended or attempted acquisition or acquisition would
jeopardize the status of the Corporation as a REIT under the
Code, the Board of Directors or its designees shall take such
actions as it deems advisable to refuse to give effect or to
prevent such Transfer, including, but not limited to, refusing
to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer
and, in addition, exercising its rights under Section 4(d) of
this Division B of this Article FOURTH.
(d) Purchase Right in Excess Shares. Beginning on the date of
the occurrence of a Transfer which, if consummated, in the
good faith judgment of the Board of Directors of the
Corporation, could result in Excess Shares, such Excess Shares
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shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to
the lesser of (i) the price per share in the transaction that
created such Excess Shares (or, in the case of a devise or
gift, the Market Price at the time of such devise or gift) and
(ii) the Market Price on the date the Corporation, or its
designee, accepts such offer. The Corporation shall have the
right to accept such offer for a period of ninety days after
the later of (i) the date of such Transfer and (ii) if the
Corporation does not receive a notice of such Transfer
pursuant to Section 4(e) of this Division B of this Article
FOURTH, the date the Board of Directors determines in good
faith that such Transfer has occurred. Prompt payment of the
purchase price shall be made in such reasonable manner as may
be determined by the Corporation. From and after the date
fixed for purchase by the Corporation, and so long as payment
of the purchase price for the Excess Shares to be so purchased
shall have been made or duly provided for, the holder of any
Excess Shares so called for purchase shall cease to be
entitled to dividends, distributions, voting rights and other
benefits with respect to such Excess Shares, excepting only
the right to payment of the purchase price fixed as aforesaid.
Any dividend or distribution paid to a proposed transferee of
Excess Shares prior to the discovery by the Corporation that
the Excess Shares have been transferred in violation of
Section 4(b) of this Division B of this Article FOURTH shall
be repaid to the Corporation upon demand. If the foregoing
provisions are determined to be void or invalid by virtue of
any legal decision, statute, rule or regulation, then the
intended transferee of such Excess Shares shall be deemed, at
the option of the Corporation, to have acted as agent on
behalf of the Corporation in acquiring such Excess Shares and
to hold such Excess Shares on behalf of the Corporation.
(e) Notice of Restricted Transfer. Any Person who acquires or
intends to acquire shares in violation of Section 4(b) of this
Division B of this Article FOURTH or any Person who is a
transferee of Excess Shares shall immediately give written
notice to the Corporation of such event and shall provide to
the Corporation such other information as the Corporation may
request in order to determine the effect, if any, of such
Transfer or intended Transfer on the Corporation's status as a
REIT.
(f) Owners Required to Provide Information. From and after the
date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0% (or such
other percentage, between 0.5% and 5.0%, as provided in the
regulations promulgated pursuant to the Code) of the
outstanding Common Shares of the Corporation shall, within 30
days after January 1 of each year, give written notice to the
Corporation stating the name and address of such Beneficial
Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such Beneficial
Owner shall provide to the Corporation such additional
information as the Corporation may request in order to
determine the effect, if any, of such Beneficial Ownership on
the Corporation's status as a REIT.
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(ii) each Person who is a Beneficial Owner or
Constructive Owner of Common Shares and each Person (including
the shareholder of record) who is holding Common Shares for a
Beneficial Owner or Constructive Owner shall provide to the
Corporation such information that the Corporation may request,
in good faith, in order to determine the Corporation's status
as a REIT.
(g) Remedies Not Limited. Nothing contained in this Division B
of this Article FOURTH shall limit the authority of the Board
of Directors to take such other action as it deems necessary
or advisable to protect the Corporation and the interests of
its shareholders by preservation of the Corporation's status
as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of Section 4 of this Division B of
this Article FOURTH, including any definition contained in
Section 4(a), the Board of Directors shall have the power to
determine the application of the provisions of this Section 4
with respect to any situation based on the facts known to it.
(i) Modification of Existing Holder Limits. Subject to the
provisions of Section 4(k) of this Division B, the Existing
Holder Limits may be modified as follows:
(i) Subject to the limitations provided in Section
4(k), any Existing Holder may Transfer Common Shares to a
Person who is already an Existing Holder up to the number of
Common Shares Beneficially Owned by such transferor Existing
Holder in excess of the Ownership Limit. Any such Transfer
will decrease the Existing Holder Limit for such transferor
Existing Holder and increase the Existing Holder Limit for
such transferee Existing Holder by the percentage of the
outstanding Common Shares so Transferred. The transferor
Existing Holder shall give the Board of Directors of the
Corporation prior written notice of any such Transfer.
(ii) Any grant of a stock option pursuant to a stock
option plan approved by the shareholders of the Corporation
shall increase the Existing Holder Limit for the affected
Existing Holder to the maximum extent possible under Section
4(k) to permit the Beneficial Ownership of the Common Shares
issuable upon the exercise of such stock option.
(iii) The Board of Directors may reduce the Existing
Holder Limit for any Existing Holder, with the written consent
of such Existing Holder, after any Transfer permitted in this
Section 4 by such Existing Holder to a Person other than an
Existing Holder or after the lapse (without exercise) of a
stock option described in Section 4(i)(ii).
(iv) Any Common Shares issued to an Existing Holder
pursuant to a dividend reinvestment plan adopted by the
Corporation shall increase the Existing Holder Limit for the
Existing Holder to the maximum extent possible under Section
4(k) to permit the Beneficial Ownership of such Common Shares.
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(j) Modification of Ownership Limit. Subject to the
limitations provided in Section 4(k) of this Division B, the
Board of Directors may from time to time increase the
Ownership Limit.
(k) Limitations on Modifications. Notwithstanding any other
provision of this Division B of this Article FOURTH:
(i) Neither the Ownership Limit nor any Existing
Holder Limit may be increased (nor may any additional Existing
Holder Limit be created) if, after giving effect to such
increase (or creation), five Beneficial Owners of Common
Shares (including all of the then Existing Holders) could
Beneficially Own, in the aggregate, more than 49.6% of the
outstanding Common Shares.
(ii) Prior to the modification of any Existing Holder
Limit or Ownership Limit pursuant to Section 4(i) or Section
4(j) of this Division B of this Article FOURTH, the Board of
Directors of the Corporation may require such opinions of
counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the
Corporation's status as a REIT.
(iii) No Existing Holder Limit shall be reduced to a
percentage which is less than the Ownership Limit.
(iv) The Ownership Limit may not be increased to a
percentage which is greater than 9.8%.
(v) The Related Party Limit may not be increased to a
percentage which is greater than 9.8%.
(l) Exceptions.
(i) The Board of Directors, with a ruling from the
Internal Revenue Service or an opinion of counsel, may exempt
a Person from the Ownership Limits or the Existing Holder
Limits, as the case may be, if such Person is not an
individual for purposes of Section 542(a)(2) of the Code and
the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to
ascertain that no individual's Beneficial Ownership of such
Common Shares will violate the Ownership Limit or the
applicable Existing Holder Limit, as the case may be, and
agrees that any violation or attempted violation will result
in such Common Shares in excess of 5.0% of the outstanding
Common Shares being deemed to be Excess Shares and subject to
repurchase by the Corporation as set forth in Section 4(d) of
this Division B of this Article FOURTH.
(ii) The Board of Directors, with a ruling from the
Internal Revenue Service or an opinion of counsel, may exempt
a Person from the limitation on such Person Constructively
Owning Common Shares in excess of the Related Party Limit if
such Person does not own and represents that it will not own,
directly or constructively (by virtue of the application of
Section 318 of the Code,
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as modified by Section 856(d)(5) of the Code), more than a
9.9% interest (as set forth in Section 856(d)(2)(B) in a
tenant of any real property owned or leased by the
Corporation, and the Corporation obtains such representations
and undertakings from such Person as are reasonably necessary
to ascertain this fact and agrees that any violation or
attempted violation will result in such Common Shares in
excess of 9.8% being deemed to be Excess Shares and subject to
repurchase by the Corporation as set forth in Section 4(d) of
this Division B of this Article FOURTH.
Section 5. Legend. Each certificate for Common Shares shall bear the
following legend:
"The Common Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own Common Shares in excess of 5.0% of
the outstanding Common Shares of the Corporation (unless such Person is an
Existing Holder) and no Person (other than an Existing Holder who Constructively
Owns in excess of 9.8% of the Common Shares immediately following the
consummation of the Initial Public Offering) may Constructively Own Common
Shares in excess of 9.8% of the outstanding Common Shares of the Corporation.
Any Person who attempts to Beneficially Own or Constructively Own Common Shares
in excess of the above limitations must immediately notify the Corporation. All
capitalized items in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Common Shares
represented may be subject to repurchase by the Corporation on the terms and
conditions set forth in the Corporation's Articles of Incorporation."
Section 6. Securities Exchange Transactions. Notwithstanding any
provision contained herein to the contrary, nothing in these Amended and
Restated Articles of Incorporation shall preclude the settlement of any
transaction entered into through the facilities of the New York Stock Exchange.
FIFTH: At all times following the consummation of the Initial Public
offering (as defined in Article FOURTH), at least a majority of the members of
the Board of Directors shall, except during the period of a vacancy or vacancies
therein, be Independent Directors. An "Independent Director" shall mean a person
who is not (i) employed by the Corporation or (ii) an "affiliate" (as defined in
Rule 405 under the Securities Act of 1933, as amended) of (A) any entity which
is part of the Developers Diversified Group, including, without limitation,
Developers Diversified Limited Partnership, an Ohio limited partnership,
Developers Diversified, Ltd., an Ohio limited partnership, W & M Properties, an
Ohio general partnership, W & Z Properties, Ltd., an Ohio limited partnership,
and DE Properties Corporation, an Ohio corporation, or (B) any partnership which
is an affiliate (as declined above) of any entity listed in clause (A) of this
Article FIFTH.
SIXTH: No holder of shares of the corporation of any class shall be
entitled as such, as a matter of right, to subscribe for or purchase shares of
any class, now or hereafter authorized, or to subscribe for or purchase
securities convertible into or exchangeable for shares of the corporation or to
which shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase
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shares, except such rights of subscription or purchase, if any, for such
considerations and upon such terms and conditions as its Board of Directors from
time to time may determine.
SEVENTH: Notwithstanding any provision of Sections 1701.01 to 1701.98,
inclusive, of the Ohio Revised Code, or any successor statutes now or hereafter
in force, requiring for the authorization or taking of any action the vote or
consent of the holders of shares entitling them to exercise two-thirds or any
other proportion of the voting power of the corporation or of any class or
classes of shares thereof, such action, unless otherwise expressly required by
law or these Articles of Incorporation, may be authorized or taken by the vote
or consent of the holders of shares entitling them to exercise a majority of the
voting power of the corporation or of such class or classes of shares thereof.
EIGHTH: To the extent permitted by law, the corporation, by action of
its Board of Directors, may purchase or otherwise acquire shares of any class
issued by it at such times, for such consideration and upon such terms and
conditions as its Board of Directors may determine.
NINTH: The provisions of Chapter 1701.831 of the Ohio Revised Code
shall not apply to the Corporation.
TENTH: The provisions of Chapter 1707.043 of the Ohio Revised Code
shall not apply to the Corporation.
ELEVENTH: If any provision (or portion thereof) of these Articles of
Incorporation shall be found to be invalid, prohibited, or unenforceable for any
reason, the remaining provisions (or portions thereof) of these Articles of
Incorporation shall be deemed to remain in full force and effect, and shall be
construed as if such invalid prohibited, or unenforceable provision had been
stricken herefrom or otherwise rendered inapplicable, it being the intent of the
Corporation and its shareholders that each such remaining provision (or portion
thereof) of these Articles of Incorporation remain, to the fullest extent
permitted by law, applicable and enforceable as to all shareholders,
notwithstanding any such finding.
TWELFTH: No shareholder of the Corporation may cumulate his voting
power in the election of directors.
THIRTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in these Articles of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
shareholders herein are granted subject to this reservations.
FOURTEENTH: These Amended and Restated Articles of Incorporation shall
take the place of and supersede the Corporation's existing Articles of
Incorporation.
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CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
DEVELOPERS DIVERSIFIED REALTY CORPORATION
SCOTT A. WOLSTEIN, Chairman of the Board of Directors and
Chief Executive Officer, and JOAN U. ALLGOOD, Secretary, of Developers
Diversified Realty Corporation, an Ohio corporation (the "Corporation"), do
hereby certify that a meeting of the shareholders of the Corporation was duly
called and held on May 18, 1999, at which meeting a quorum of the shareholders
was present in person or by proxy, and by the affirmative vote of the holders of
shares entitling them to exercise a majority of the voting power of the
Corporation on a proposal to amend the Corporation's Amended and Restated
Articles of Incorporation, as amended, the resolutions attached hereto as
Exhibit A was duly adopted; and that said resolution is valid and binding, has
not been amended, modified or rescinded, and is in full force and effect on the
date hereof.
IN WITNESS WHEREOF, Scott A. Wolstein, Chairman of the Board
of Directors and Chief Executive Officer, and Joan U. Allgood, Secretary, of
Developers Diversified Realty Corporation acting for and on its behalf, do
hereunto subscribe their names this 18th day of May, 1999.
/s/ Scott A. Wolstein
--------------------------------------------
Scott A. Wolstein, Chairman of the Board of
Directors and Chief Executive Officer
/s/ Joan U. Allgood
--------------------------------------------
Joan U. Allgood, Secretary
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EXHIBIT A
RESOLVED, that Article FOURTH of the Corporation's Amended and Restated
Articles of Incorporation, as amended, be, and the same hereby is, deleted in
its entirety and there is substituted therefor the following:
FOURTH: The authorized number of shares of the Corporation is
109,000,000, consisting of 100,000,000 Common Shares, without par value
(hereinafter called "Common Shares"), 750,000 Class A Cumulative Preferred
Shares, without par value (hereinafter called "Class A Shares"), 750,000 Class B
Cumulative Preferred Shares, without par value (hereinafter called "Class B
Shares"), 750,000 Class C Cumulative Preferred Shares, without par value
(hereinafter called "Class C Shares"), 750,000 Class D Cumulative Preferred
Shares, without par value (hereinafter called "Class D Shares"), 750,000 Class E
Cumulative Preferred Shares, without par value (hereinafter called "Class E
Shares"), 750,000 Class F Cumulative Preferred Shares, without par value
(hereinafter called "Class G Shares"), 750,000 Class G Cumulative Preferred
Shares, without par value (hereinafter called "Class G Shares"), 750,000 Class H
Cumulative Preferred Shares, without par value (hereinafter called "Class H
Shares"), 750,000 Class I Cumulative Preferred Shares, without par value
(hereinafter called "Class I Shares"), 750,000 Class J Cumulative Preferred
Shares, without par value (hereinafter called "Class J Shares"), 750,000 Class K
Cumulative Preferred Shares, without par value (hereinafter called "Class K
Shares"), and 750,000 Noncumulative Preferred Shares, without par value
(hereinafter called "Noncumulative Shares"). The Class A Shares, Class B Shares,
Class C Shares, Class D Shares, Class E Shares, the Class F Shares, the Class G
Shares, the Class H Shares, the Class I Shares, the Class J Shares and the Class
K Shares are sometimes collectively referred to herein as the "Cumulative
Shares."
DIVISION A
I. The Class A Cumulative Preferred Shares. The Class A Shares shall
have the following express terms:
Section 1. Series. The Class A Shares may be issued from time
to time in one or more series. All Class A Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class A Shares shall rank on a parity with the Class B
Shares, the Class C Shares, the Class D Shares, the Class E Shares, the
Class F Shares, the Class G Shares, the Class H Shares, the Class I
Shares, the Class J Shares, the Class K Shares and the Noncumulative
Shares and shall be identical to all Class B Shares, Class C Shares,
Class D Shares, Class E Shares, the Class F Shares, the Class G Shares,
the Class H Shares, the Class I Shares, the Class J Shares, the Class K
Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a)
through (i), inclusive, of this Section 1 and (2) only dividends on the
Cumulative Shares, shall be cumulative as set forth herein. Subject to
the provisions of Sections 2 through 5, both inclusive, and Item XIII
of this Division, which provisions shall apply to all Class A Shares,
the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and, with respect to each such series to
determine and fix prior to the issuance thereof (and thereafter, to the
extent provided in clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
73
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item I) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class A Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class A Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
A Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class A Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares,
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74
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares then issued
and outstanding and entitled to receive such dividends.
(b) So long as any Class A Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class A Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class A Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
A Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class A Shares received by the Corporation subsequent to
the date of first issuance of Class A Shares of any series,
unless:
(1) All accrued and unpaid dividends on
Cumulative Shares including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item I.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class A Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class A Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class A Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
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(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class A Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item I; and
(2) Shall, from time to time, make such
redemptions of each series of Class A Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item I; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
A Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item I prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class A Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class A Shares so to be redeemed
amounts equal to the redemption price of the Class A Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class A Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class A Shares which
have been called for redemption shall not within six
years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and
to such holders.
(c) Any Class A Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class A Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as
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amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not
purchase or redeem (for sinking fund purposes or otherwise)
less than all of the Class A Shares then outstanding except in
accordance with a stock purchase offer made to all holders of
record of Class A Shares, unless all dividends on all Class A
Shares then outstanding for all previous and current dividend
periods shall have been declared and paid or funds therefor
set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class A Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class A Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item I, plus an amount equal
to all dividends accrued and unpaid thereon to the date of
payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class A
Shares of the full preferential amounts as aforesaid,
the holders of Class A Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class A Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
A Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class A Shares, voting
separately as a class, together with all Class B Shares, Class
C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class A Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class A
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Shares are present in person or by proxy; and provided
further, that the special class voting rights provided for in
this paragraph when the same shall have become vested shall
remain so vested until all accrued and unpaid dividends on
such Class A Shares then outstanding shall have been paid or
declared and a sum sufficient for the payment thereof set
aside for payment, whereupon the holders of such Class A
Shares shall be divested of their special class voting rights
in respect of subsequent elections of directors, subject to
the revesting of such special class voting rights in the event
above specified in this paragraph.
(2) In the event of default entitling
holders of Class A Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Class A Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of Class A
Shares. At any meeting at which such holders of Class
A Shares shall be entitled to elect directors,
holders of 50% of such Class A Shares, present in
person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at
which there shall be such a quorum shall be
sufficient to elect the members of the Board of
Directors which such holders of Class A Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class A Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class A Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class A Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class A Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class B Shares,
Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares,
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Class H Shares, Class I Shares, Class J Shares, Class K Shares
or Noncumulative Shares are entitled to elect directors
pursuant hereto by reason of any default in the payment of
dividends thereon, then the voting rights of the Class A
Shares, the Class B Shares, the Class C Shares, the Class D
Shares, the Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares, Class K Shares
and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes
proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Class A
Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders
of any such other shares have elected such directors prior to
the happening of the default or event permitting the holders
of Class A Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Class A Shares voting together as a single class for such
directors, resulting in the termination of the term of such
previously elected directors upon the election of such new
directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class A Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class A Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class A Shares or of any shares
ranking on a parity with or junior to the Class A
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class A Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible
into shares, in either case ranking prior to such series of
Class A Shares.
(e) In the event, and only to the extent, that (1)
Class A Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class A
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as
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to authorize, create or change the authorized or outstanding
number of Class A Shares or of any shares ranking on a parity
with or junior to the Class A Shares nor the Amendment of the
provisions of the Code of Regulations so as to change the
number or classification of directors of the Corporation shall
be deemed to affect adversely and materially the preferences
or voting or other rights of the holders of such series.
Section 6. 9 1/2% Class A Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class A Shares, 460,000 shares are
designated as a series entitled "9 1/2% Class A Cumulative Redeemable
Preferred Shares" (hereinafter called "9 1/2% Class A Preferred
Shares"). The 9 1/2% ClasS A Preferred Shares shall have the express
terms set forth in this Item I as being applicable to all Class A
Shares as a class and, in addition, the following express terms
applicable to all 9 1/2% Class A Preferred Shares as a series of Class
A Shares:
(a) The annual dividend rate of the 9 1/2% Class A
Preferred Shares shall be 9 1/2% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 9 1/2% Class A Preferred Shares
shall be payable, if declared, quarterly on or about the 15th
day of March, June, September, and December each year, the
first quarterly dividend being payable, if declared, on
December 15, 1995. The dividends payable for each full
quarterly dividend period on each 9 1/2% Class A Preferred
Shares shall be $5.94.
Dividends for the initial dividend period on the 9
1/2% Class A Preferred Shares, or for any period shorter or
longer than a full dividend period on the 9 1/2% Class A
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 9 1/2% Class A
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 9 1/2% Class A Preferred Shares
shall be cumulative as follows:
(1) With respect to shares included in the
initial issue of 9 1/2% Class A Preferred Shares and
shares issued any time thereafter up to and including
the record date for the payment of the first dividend
on the initial issue of 9 1/2% Class A PreferrEd
Shares, dividends shall be cumulative from the date
of the initial issue of 9 1/2% Class A Preferred
Shares; and
(2) With respect to shares issued any time
after the aforesaid record date, dividends shall be
cumulative from the dividend payment date next
preceding the date of issue of such shares, except
that if such shares are issued during the period
commencing the day after the record date for the
payment of a dividend on 9 1/2% Class A Preferred
Shares and ending on the payment date of that
dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 9 1/2% Class A Preferred
Shares may not be redeemed prior to November 15, 2000. At any
time or from
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time to time oN and after November 15, 2000 the Corporation,
at its option upon not less than thirty (30) nor more than
sixty (60) days' written notice, may redeem all or any part of
the 9 1/2% Class A Preferred Shares at a redemption price of
$250.00 per share plus, in each case, an amount equal to all
dividends accrued and unpaid thereon to the redemption date,
without interest. The redemption price (other than the portion
thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital shares of the
Corporation, which may include any equity securities
(including common shares and preferred shares), shares,
interests, participation or other ownership interests (however
designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities), or
options to purchase any of the foregoing.
(e) The amount payable per 9 1/2% Class A Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolutioN or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 9 1/2% Class A
Preferred Shares, at any time during which the Corporation is
in default In the payment of dividends on such 9 1/2% Class A
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Item I, be deemed to be
made in respect of the earliest dividend period with respect
to which the Corporation is in default.
II. The Class B Cumulative Preferred Shares. The Class B Cumulative
Preferred Shares shall have the following express terms:
Section 1. Series. The Class B Shares may be issued from time
to time in one or more series. All Class B Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class B Shares shall rank on a parity with the Class A
Shares, the Class C Shares, the Class D Shares, the Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class C Shares, Class D Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on the Cumulative Shares are
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class B Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
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(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item II) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), both inclusive, of this Section and is authorized to take such
actions with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class B Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class B Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
B Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class B Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to the
Noncumulative Shares, only with respect to the then current
dividend period), ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or
declared or set apart for all Class A Shares, Class C Shares,
Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class
K Shares and Noncumulative Shares then issued and outstanding
and entitled to receive such dividends.
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(b) So long as any Class B Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class B Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class B Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
B Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class B Shares received by the Corporation subsequent to
the date of first issuance of Class B Shares of any series,
unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment thereof set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item II.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption, retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class B Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent that it does not cause any dividends to fail to qualify
for the dividends paid deduction under Section 561 of the
Code, the portion of the Capital Gains Amount that shall be
allocable to holders of the Class B Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class B Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class B Shares at the time
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outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item II; and
(2) Shall, from time to time, make such
redemptions of each series of Class B Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item II; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
B Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item II prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class B Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class B Shares so to be redeemed
amounts equal to the redemption price of the Class B Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class B Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class B Shares which
have been called for redemption shall not within six
years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and
to such holders.
(c) Any Class B Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class B Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or
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otherwise) less than all of the Class B Shares then
outstanding except in accordance with a stock purchase offer
made to all holders of record of Class B Shares, unless all
dividends on all Class B Shares then outstanding for all
previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking
fund obligations applicable thereto shall have been complied
with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class B Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class B Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item II, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class B
Shares of the full preferential amounts as aforesaid,
the holders of Class B Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class B Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
B Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of Class B Shares, voting separately as
a class, together with all Class A Shares, Class C Shares,
Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class
K Shares and Noncumulative Shares upon which like voting
rights have been conferred and are exercisable under the
circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the
Board of Directors of the Corporation; provided, however, that
the holders of such Class B Shares shall not exercise such
special class voting rights except at meetings of such
shareholders for the election of directors at which the
holders of not less than 50% of such Class B Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested
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shall remain so vested until all accrued and unpaid dividends
on such Class B Shares then outstanding shall have been paid
or declared and a sum sufficient therefor set aside for
payment, whereupon the holders of such Class B Shares shall be
divested of their special class voting rights in respect of
subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified
in this paragraph.
(2) In the event of default entitling
holders of Class B Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Class B Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of Class B
Shares. At any meeting at which such holders of Class
B Shares shall be entitled to elect directors,
holders of 50% of such Class B Shares, present in
person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at
which there shall be such a quorum shall be
sufficient to elect the members of the Board of
Directors which such holders of Class B Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class B Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation
nor require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class B Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class B Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class B Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the
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Noncumulative Shares then entitled to vote shall be combined
(with class of shares having a number of votes proportional to
the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Class B Shares and of
all such other shares then entitled so to vote, voting as a
class, shall elect such directors. If the holders of any such
other shares have elected such directors prior to the
happening of the default or event permitting the holders of
Class B Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Class B Shares voting together as a single class for such
directors, resulting in the termination of the term of such
previously elected directors upon the election of such new
directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class B Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class B Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class B Shares or of any shares
ranking on a parity with or junior to the Class B
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class B Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such Class B Shares.
(e) In the event, and only to the extent, that (1)
Class B Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class B
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class B Shares
or of any shares remaining on a parity with or junior to the
Class B Shares nor the amendment of the provisions of the Code
of Regulations so as to change the number of classification of
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directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights
of the holders of such series.
Section 6. 9.44% Class B Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class B Shares, 177,500 shares are
designated as a series entitled "9.44% Class B Cumulative Redeemable
Preferred Shares" (hereinafter called "9.44% Class B Preferred
Shares"). The 9.44% Class B Preferred Shares shall have the express
terms set forth in this Item II as being applicable to all Class B
Shares as a class and, in addition, the following express terms
applicable to all 9.44% Class B Preferred Shares as a series of Class B
Shares:
(a) The annual dividend rate of the 9.44% Class B
Preferred Shares shall be 9.44% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 9.44% Class B Preferred Shares
shall be payable, if declared, quarterly on or about the 15th
day of March, June, September, and December each year, the
first quarterly dividend being payable, if declared, on March
15, 1996. The dividends payable for each full quarterly
dividend period on each 9.44% Class B Preferred Shares shall
be $5.90.
Dividends for the initial dividend period on the
9.44% Class B Preferred Shares, or for any period shorter or
longer than a full dividend period on the 9.44% Class B
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 9.44% Class B
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 9.44% Class B Preferred Shares shall
be cumulative as follows:
(1) With respect to shares included in the
initial issue of 9.44% Class B Preferred Shares and
shares issued any time thereafter up to and including
the record date for the payment of the first dividend
on the initial issue of 9.44% Class B Preferred
Shares, dividends shall be cumulative from the date
of the initial issue of 9.44% Class B Preferred
Shares; and
(2) With respect to shares issued any time
after the aforesaid record date, dividends shall be
cumulative from the dividend payment date next
preceding the date of issue of such shares, except
that if such shares are issued during the period
commencing the day after the record date for the
payment of a dividend on 9.44% Class B Preferred
Shares and ending on the payment date of that
dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 9.44% Class B Preferred
Shares may not be redeemed prior to December 26, 2000. At any
time or from time to time on and after December 26, 2000 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 9.44% Class B Preferred Shares at a redemption
price of $250.00 per share
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plus, in each case, an amount equal to all dividends accrued
and unpaid thereon to the redemption date, without interest.
The redemption price (other than the portion thereof
consisting of accrued and unpaid dividends) is payable solely
out of the sale proceeds of other capital shares of the
Corporation, which may include any equity securities
(including common shares and preferred shares), shares,
interests, participation or other ownership interests (however
designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities), or
options to purchase any of the foregoing.
(e) The amount payable per 9.44% Class B Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 9.44% Class B
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 9.44% Class B
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Item II, be deemed to be
made in respect of the earliest dividend period with respect
to which the Corporation is in default.
III. The Class C Cumulative Preferred Shares. The Class C Shares shall
have the following express terms:
Section 1. Series. The Class C Shares may be issued from time
to time in one or more series. All Class C Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class C Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class D Shares, the Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class D Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class C Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
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(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item III) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class C Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class C Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
C Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class C Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class C Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class C Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class C Shares, nor shall
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any Common Shares or any other shares ranking junior to the
Class C Shares be purchased, retired or otherwise acquired by
the Corporation, except out of the proceeds of the sale of
Common Shares or other shares of the Corporation ranking
junior to the Class C Shares received by the Corporation
subsequent to the date of first issuance of Class C Shares of
any series, unless:
(1) All accrued and unpaid dividends on
Cumulative Shares including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item III.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class C Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class C Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class C Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class C Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item III; and
(2) Shall, from time to time, make such
redemptions of each series of Class C Shares as may
be required to fulfill the requirements of any
sinking fund
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provided for shares of such series at the applicable
sinking fund redemption price fixed in accordance
with the provisions of Section 1 of this Item III;
and shall in each case pay all accrued and unpaid
dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
C Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item III prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class C Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class C Shares so to be redeemed
amounts equal to the redemption price of the Class C Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class C Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class C Shares which
have been called for redemption shall not within six
years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and
to such holders.
(c) Any Class C Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class C Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
C Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class C
Shares, unless all dividends on all Class C Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
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Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class C Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class C Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item III, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class C
Shares of the full preferential amounts as aforesaid,
the holders of Class C Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class C Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
C Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class C Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class C Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class C Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class C Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class C Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class C
Shares, at any time during which
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the Corporation is in default in the payment of dividends on
such Class C Shares for any dividend period, shall be deemed
to be made in respect of the earliest dividend period with
respect to which the Corporation is in default.
(2) In the event of default entitling
holders of Class C Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Class C Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of Class C
Shares. At any meeting at which such holders of Class
C Shares shall be entitled to elect directors,
holders of 50% of such Class C Shares, present in
person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at
which there shall be such a quorum shall be
sufficient to elect the members of the Board of
Directors which such holders of Class C Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class C Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class C Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class C Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class C Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its
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outstanding shares). In such case, the holders of Class C
Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders
of any such other shares have elected such directors prior to
the happening of the default or event permitting the holders
of Class C Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Class C Shares voting together as a single class for such
directors, resulting in the termination of the term of such
previously elected directors upon the election of such new
directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class C Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class C Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class C Shares or of any shares
ranking on a parity with or junior to the Class C
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class C Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class C Shares.
(e) In the event, and only to the extent, that (1)
Class C Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class C
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class C Shares
or of any shares ranking on a parity with or junior to the
Class C Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
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Section 6. 8 3/8% Class C Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class C Shares, 400,000 shares are
designated as a series entitled "8 3/8% Class C Cumulative Redeemable
Preferred Shares" (hereinafter called "8 3/8% Class C Preferred
Shares"). The 8 3/8% Class C Preferred Shares shall have the express
terms set forth in this Division as being applicable to all Class C
Shares as a class and, in addition, the following express terms
applicable to all 8 3/8% Class C Preferred Shares as a series of Class
C Shares:
(a) The annual dividend rate of the 8 3/8% Class C
Preferred Shares shall be 8 3/8% of the liquidation preference
of $250.00 per share.
(b) Dividends on the 8 3/8% Class C Preferred Shares
shall be payable, if declared, quarterly on or about the
fifteenth day of March, June, September, and December each
year, the first quarterly dividend being payable, if declared,
on September 15, 1998. The dividends payable for each full
quarterly dividend period on each 8 3/8% Class C Preferred
Shares shall be $5.234375.
Dividends for the initial dividend period on the 8
3/8% Class C Preferred Shares, or for any period shorter or
longer than a full dividend period on the 8 3/8% Class C
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 8 3/8% Class C
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 8 3/8% Class C Preferred Shares
shall be cumulative as follows:
(1) With respect to shares included in the
initial issue of 8 3/8% Class C Preferred Shares and
shares issued any time thereafter up to and including
the record date for the payment of the first dividend
on the initial issue of 8 3/8% Class C Preferred
Shares, dividends shall be cumulative from the date
of the initial issue of 8 3/8% Class C Preferred
Shares; and
(2) With respect to shares issued any time
after the aforesaid record date, dividends shall be
cumulative from the dividend payment date next
preceding the date of issue of such shares, except
that if such shares are issued during the period
commencing the day after the record date for the
payment of a dividend on 8 3/8% Class C Preferred
Shares and ending on the payment date of that
dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 8 3/8% Class C Preferred
Shares may not be redeemed prior to July 7, 2003. At any time
or from time to time on and after July 7, 2003 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 8 3/8% Class C Preferred Shares at a
redemption price of $250.00 per share plus, in each case, an
amount equal to all dividends accrued and unpaid thereon to
the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and
unpaid dividends) is payable solely out of the sale proceeds
of other capital
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shares of the Corporation, which may include any equity
securities (including common shares and preferred shares),
shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 8 3/8% Class C Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 8 3/8% Class C
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 8 3/8% Class C
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Division A-III, be deemed
to be made in respect of the earliest dividend period with
respect to which the Corporation is in default.
IV. The Class D Cumulative Preferred Shares. The Class D Shares shall
have the following express terms:
Section 1. Series. The Class D Shares may be issued from time
to time in one or more series. All Class D Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class D Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class D Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
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(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item IV) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class D Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class D Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
D Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class D Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class E Shares, Class F Shares, Class G Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class D Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class D Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class D Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
D Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class
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D Shares received by the Corporation subsequent to the date of
first issuance of Class D Shares of any series, unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item IV.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class D Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class D Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class D Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class D Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item IV; and
(2) Shall, from time to time, make such
redemptions of each series of Class D Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item IV; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
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(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
D Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item IV prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class D Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class D Shares so to be redeemed
amounts equal to the redemption price of the Class D Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class D Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class D Shares which
have been called for redemption shall not within six
years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and
to such holders.
(c) Any Class D Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class D Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
D Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class D
Shares, unless all dividends on all Class D Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
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(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class D Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class D Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item IV, plus an amount
equal to all dividends accrued and unpaid thereon to the date
of payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class D
Shares of the full preferential amounts as aforesaid,
the holders of Class D Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class D Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
D Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class D Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class D Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class D Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class D Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class D Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class D
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class D Shares for any
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dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling
holders of Class D Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Class D Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of Class D
Shares. At any meeting at which such holders of Class
D Shares shall be entitled to elect directors,
holders of 50% of such Class D Shares, present in
person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at
which there shall be such a quorum shall be
sufficient to elect the members of the Board of
Directors which such holders of Class D Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class D Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class D Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class D Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class D Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class D Shares and of all such other
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shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class D Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class D Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class D Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class D Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class D Shares or of any shares
ranking on a parity with or junior to the Class D
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class D Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class D Shares.
(e) In the event, and only to the extent, that (1)
Class D Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class D
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class D Shares
or of any shares ranking on a parity with or junior to the
Class D Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
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Section 6. 8.68% Class D Cumulative Redeemable Preferred
Shares. Of the 1,500,000 authorized Class D Shares, 230,000 shares are
designated as a series entitled "8.68% Class D Cumulative Redeemable
Preferred Shares" (hereinafter called "8.68% Class D Preferred
Shares"). The 8.68% Class D Preferred Shares shall have the express
terms set forth in this Division as being applicable to all Class D
Shares as a class and, in addition, the following express terms
applicable to all 8.68% Class D Preferred Shares as a series of Class D
Shares:
(a) The annual dividend rate of the 8.68% Class D
Preferred Shares shall be 8.68 % of the liquidation preference
of $250.00 per share.
(b) Dividends on the 8.68% Class D Preferred Shares
shall be payable, if declared, quarterly on or about the
fifteenth day of March, June, September, and December each
year, the first quarterly dividend being payable, if declared,
on December 15, 1998 The dividends payable for each full
quarterly dividend period on each 8.68 % Class D Preferred
Shares shall be $5.425.
Dividends for the initial dividend period on the
8.68% Class D Preferred Shares, or for any period shorter or
longer than a full dividend period on the 8.68% Class D
Preferred Shares, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 8.68% Class D
Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward.
Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from
time to time by the Corporation's Board of Directors.
(c) Dividends on 8.68 % Class D Preferred Shares
shall be cumulative as follows:
(1) With respect to shares included in the
initial issue of 8.68% Class D Preferred Shares and
shares issued any time thereafter up to and including
the record date for the payment of the first dividend
on the initial issue of 8.68% Class D Preferred
Shares, dividends shall be cumulative from the date of
the initial issue of 8.68 % Class D Preferred Shares;
and
(2) With respect to shares issued any time
after the aforesaid record date, dividends shall be
cumulative from the dividend payment date next
preceding the date of issue of such shares, except
that if such shares are issued during the period
commencing the day after the record date for the
payment of a dividend on 8.68 % Class D Preferred
Shares and ending on the payment date of that
dividend, dividends with respect to such shares shall
be cumulative from that dividend payment date.
(d) Except as required to preserve the Corporation's
status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, the 8.68% Class D Preferred
Shares may not be redeemed prior to August 20, 2003. At any
time or from time to time on and after August 20, 2003 the
Corporation, at its option upon not less than thirty (30) nor
more than sixty (60) days' written notice, may redeem all or
any part of the 8.68% Class D Preferred Shares at a redemption
price of $250.00 per share plus, in each case, an amount equal
to all dividends accrued and unpaid thereon to the redemption
date, without interest. The redemption price (other than the
portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital
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shares of the Corporation, which may include any equity
securities (including common shares and preferred shares),
shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.
(e) The amount payable per 8.68% Class D Preferred
Share in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.
(f) All dividend payments made on the 8.68% Class D
Preferred Shares, at any time during which the Corporation is
in default in the payment of dividends on such 8.68 % Class D
Preferred Shares for any dividend period, shall, for the
purposes of Section 5(b)(1) of this Division A-IV, be deemed
to be made in respect of the earliest dividend period with
respect to which the Corporation is in default.
V. The Class E Cumulative Preferred Shares. The Class E Shares shall
have the following express terms:
Section 1. Series. The Class E Shares may be issued from time
to time in one or more series. All Class E Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class E Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class E Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
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(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item V) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class E Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class E Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
E Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class E Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class F Shares, Class G Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class E Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class E Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class E Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
E Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class
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E Shares received by the Corporation subsequent to the date of
first issuance of Class E Shares of any series, unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item V.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class E Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class E Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class E Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class E Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item V; and
(2) Shall, from time to time, make such
redemptions of each series of Class E Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item V; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
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(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
E Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item V prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class E Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class E Shares so to be redeemed
amounts equal to the redemption price of the Class E Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class E Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class E Shares which have
been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all
responsibility in respect thereof and to such
holders.
(c) Any Class E Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class E Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
E Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class E
Shares, unless all dividends on all Class E Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
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(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class E Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class E Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item V, plus an amount equal
to all dividends accrued and unpaid thereon to the date of
payment of the amount due pursuant to such liquidation,
dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class E
Shares of the full preferential amounts as aforesaid,
the holders of Class E Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class E Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
E Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class E Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class E Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class E Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class E Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class E Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class E
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class E Shares for any
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dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling
holders of Class E Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Class E Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of Class E
Shares. At any meeting at which such holders of Class
E Shares shall be entitled to elect directors,
holders of 50% of such Class E Shares, present in
person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at
which there shall be such a quorum shall be
sufficient to elect the members of the Board of
Directors which such holders of Class E Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class E Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class E Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class E Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class E Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class E Shares and of all such other
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shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class E Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class E Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class E Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class E Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class E Shares or of any shares
ranking on a parity with or junior to the Class E
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class E Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class E Shares.
(e) In the event, and only to the extent, that (1)
Class E Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class E
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class E Shares
or of any shares ranking on a parity with or junior to the
Class E Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
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VI. The Class F Cumulative Preferred Shares. The Class F Shares shall
have the following express terms:
Section 1. Series. The Class F Shares may be issued from time
to time in one or more series. All Class F Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class F Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class E Shares, Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class F Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item VI) on the issuance of
shares of the same series or of any other class or series.
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The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class F Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class F Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
F Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class F Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class G Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class F Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class F Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class F Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
F Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class F Shares received by the Corporation subsequent to
the date of first issuance of Class F Shares of any series,
unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item VI.
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(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class F Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class F Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class F Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class F Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item VI; and
(2) Shall, from time to time, make such
redemptions of each series of Class F Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item VI; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
F Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item VI prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class F Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class F Shares so to be redeemed
amounts equal to the redemption price of the Class F Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be
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shareholders with respect to such shares; and from and after
the time such notice shall have been so deposited and such
deposit of money shall have been so made, such holders shall
have no rights or claim against the Corporation with respect
to such shares, except only the right to receive such money
from such bank or trust company without interest or to
exercise before the redemption date any unexpired privileges
of conversion. In the event less than all of the outstanding
Class F Shares are to be redeemed, the Corporation shall
select by lot the shares so to be redeemed in such manner as
shall be prescribed by the Board of Directors.
(2) If the holders of Class F Shares which have
been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all
responsibility in respect thereof and to such
holders.
(c) Any Class F Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class F Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
F Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class F
Shares, unless all dividends on all Class F Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class F Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class F Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item VI, plus an amount
equal to all dividends accrued and unpaid thereon 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 Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
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(2) After payment to the holders of Class F
Shares of the full preferential amounts as aforesaid,
the holders of Class F Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class F Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
F Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class F Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares,
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class F Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class F Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class F Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class F Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class F
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class F Shares for any
dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling holders of
Class F Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting
of such holders for the purpose of electing such
directors shall be called by the Secretary of the
Corporation upon written request of, or may be called
by, the holders of record of at least 10% of the
Class F Shares upon which such default in the payment
of dividends exists and notice thereof shall be given
in the same manner as that required for the annual
meeting of shareholders; provided, however, that the
Corporation shall not be required to call such
special meeting if the annual meeting of shareholders
shall be called to be held within 90 days after the
date of receipt of the foregoing written request from
the holders of Class F Shares. At any meeting at
which such holders of Class F Shares shall be
entitled to elect directors, holders of 50% of such
Class F Shares, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of
the holders of a
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majority of such shares so present at any such
meeting at which there shall be such a quorum shall
be sufficient to elect the members of the Board of
Directors which such holders of Class F Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class F Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class F Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class F Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class F Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class F Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class F Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class F Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class F Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
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Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class F Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class F Shares or of any shares
ranking on a parity with or junior to the Class F
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class F Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class F Shares.
(e) In the event, and only to the extent, that (1)
Class F Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class F
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class F Shares
or of any shares ranking on a parity with or junior to the
Class F Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
VII. The Class G Cumulative Preferred Shares. The Class G Shares shall
have the following express terms:
Section 1. Series. The Class G Shares may be issued from time
to time in one or more series. All Class G Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class G Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class E Shares, Class F Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class G Shares, the Board of Directors
hereby is authorized to cause such shares to be
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issued in one or more series and, with respect to each such series to
determine and fix prior to the issuance thereof (and thereafter, to the
extent provided in clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item VII) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class G Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class G Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
G Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion
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to the respective annual dividend rates fixed therefor, shall
have been paid upon or declared or set apart for all Class G
Shares of all series then issued and outstanding and entitled
to receive such dividend and (ii) the dividends payable for
the dividend periods terminating on the same or any earlier
date (but, with respect to Noncumulative Shares, only with
respect to the then current dividend period), ratably in
proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all
Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class H Shares, Class
I Shares, Class J Shares, Class K Shares and Noncumulative
Shares then issued and outstanding and entitled to receive
such dividends.
(b) So long as any Class G Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class G Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class G Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
G Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class G Shares received by the Corporation subsequent to
the date of first issuance of Class G Shares of any series,
unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item VII.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class G Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class G Shares shall be the amount
that the total dividends
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paid or made available to the holders of the Class G Shares
for the year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class G Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item VII; and
(2) Shall, from time to time, make such
redemptions of each series of Class G Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item VII; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
G Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item VII prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class G Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class G Shares so to be redeemed
amounts equal to the redemption price of the Class G Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class G Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class G Shares which have
been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all
responsibility in respect thereof and to such
holders.
(c) Any Class G Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking
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fund requirements provided for shares of such series, (3)
converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation, shall resume the status
of authorized but unissued Class G Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
G Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class G
Shares, unless all dividends on all Class G Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class G Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class G Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item VII, 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 Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class G
Shares of the full preferential amounts as aforesaid,
the holders of Class G Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class G Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
G Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class G Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C
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Shares, Class D Shares, Class E Shares, Class F Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances
described in Subsection 5(c), shall be entitled to elect, as
herein provided, a total of two members of the Board of
Directors of the Corporation; provided, however, that the
holders of such Class G Shares shall not exercise such special
class voting rights except at meetings of such shareholders
for the election of directors at which the holders of not less
than 50% of such Class G Shares are present in person or by
proxy; and provided further, that the special class voting
rights provided for in this paragraph when the same shall have
become vested shall remain so vested until all accrued and
unpaid dividends on such Class G Shares then outstanding shall
have been paid or declared and a sum sufficient for the
payment thereof set aside for payment, whereupon the holders
of such Class G Shares shall be divested of their special
class voting rights in respect of subsequent elections of
directors, subject to the revesting of such special class
voting rights in the event above specified in this paragraph.
All dividend payments made on the Class G Shares, at any time
during which the Corporation is in default in the payment of
dividends on such Class G Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.
(2) In the event of default entitling holders of
Class G Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting
of such holders for the purpose of electing such
directors shall be called by the Secretary of the
Corporation upon written request of, or may be called
by, the holders of record of at least 10% of the
Class G Shares upon which such default in the payment
of dividends exists and notice thereof shall be given
in the same manner as that required for the annual
meeting of shareholders; provided, however, that the
Corporation shall not be required to call such
special meeting if the annual meeting of shareholders
shall be called to be held within 90 days after the
date of receipt of the foregoing written request from
the holders of Class G Shares. At any meeting at
which such holders of Class G Shares shall be
entitled to elect directors, holders of 50% of such
Class G Shares, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present
at any such meeting at which there shall be such a
quorum shall be sufficient to elect the members of
the Board of Directors which such holders of Class G
Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and
Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares
fixing the number of directors of the Corporation,
the two directors who may be elected by such holders
of Class G Shares pursuant to this Subsection shall
serve in addition to any other directors then in
office or proposed to be elected otherwise than
pursuant to this Subsection. Nothing in this
Subsection shall prevent any change otherwise
permitted in the total number of or classifications
of directors of the Corporation or require the
resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the
Corporation, the two directors elected by such
holders of Class G Shares shall be elected annually
for terms expiring at the next succeeding annual
meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class G Shares in
respect of elections of directors as provided in this
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Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class G Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class G Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class G Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class G Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class G Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class G Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class G Shares or of any shares
ranking on a parity with or junior to the Class G
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class G Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class G Shares.
(e) In the event, and only to the extent, that (1)
Class G Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least
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two-thirds of each series of Class G Shares at the time
outstanding, voting separately as a class, given in person or
by proxy either in writing or at a meeting called for the
purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these
Amended and Restated Articles of Incorporation, as amended, or
of the Code of Regulations of the Corporation which affects
adversely and materially the preferences or voting or other
rights of the holders of such series which are set forth in
these Amended and Restated Articles of Incorporation, as
amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so
as to authorize, create or change the authorized or
outstanding number of Class G Shares or of any shares ranking
on a parity with or junior to the Class G Shares nor the
Amendment of the provisions of the Code of Regulations so as
to change the number or classification of directors of the
Corporation shall be deemed to affect adversely and materially
the preferences or voting or other rights of the holders of
such series.
VIII. The Class H Cumulative Preferred Shares. The Class H Shares shall
have the following express terms:
Section 1. Series. The Class H Shares may be issued from time
to time in one or more series. All Class H Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class H Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class E Shares, Class F Shares, Class G Shares, Class I Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class I
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class H Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
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(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item VIII) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class H Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class H Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
H Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class H Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class
G Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class H Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class H Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class H Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
H Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class H Shares received by the Corporation subsequent to
the date of first issuance of Class H Shares of any series,
unless:
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(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item VIII.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class H Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class H Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class H Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class H Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item VIII; and
(2) Shall, from time to time, make such
redemptions of each series of Class H Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item VIII; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
H Shares to be redeemed at their respective addresses then
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appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item VIII prior to the issuance thereof. At any time
after notice as provided above has been deposited in the mail,
the Corporation may deposit the aggregate redemption price of
Class H Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class H Shares so to be redeemed
amounts equal to the redemption price of the Class H Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class H Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class H Shares which have
been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all
responsibility in respect thereof and to such
holders.
(c) Any Class H Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class H Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
H Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class H
Shares, unless all dividends on all Class H Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class H Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its
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capital, before any amount shall be paid or distributed among
the holders of the Common Shares or any other shares ranking
junior to the Class H Shares, the amounts fixed with respect
to shares of such series in accordance with Section 1 of this
Item VIII, 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 Cumulative Shares and
Noncumulative Shares of the full preferential amount to which
they are respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Cumulative Shares and
Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class H
Shares of the full preferential amounts as aforesaid,
the holders of Class H Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class H Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
H Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class H Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class I Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class H Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class H Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class H Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class H Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class H
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class H Shares for any
dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
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(2) In the event of default entitling
holders of Class H Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Class H Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of Class H
Shares. At any meeting at which such holders of Class
H Shares shall be entitled to elect directors,
holders of 50% of such Class H Shares, present in
person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at
which there shall be such a quorum shall be
sufficient to elect the members of the Board of
Directors which such holders of Class H Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class H Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class H Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class H Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class H Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class I Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class H Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class H Shares to
elect directors, or prior to a written
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request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Class H Shares voting together as a single class for such
directors, resulting in the termination of the term of such
previously elected directors upon the election of such new
directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class H Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class H Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class H Shares or of any shares
ranking on a parity with or junior to the Class H
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class H Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class H Shares.
(e) In the event, and only to the extent, that (1)
Class H Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class H
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class H Shares
or of any shares ranking on a parity with or junior to the
Class H Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
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IX. The Class I Cumulative Preferred Shares. The Class I Shares shall
have the following express terms:
Section 1. Series. The Class I Shares may be issued from time
to time in one or more series. All Class I Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class I Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class J
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class J Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class I Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item IX) on the issuance of
shares of the same series or of any other class or series.
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The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class I Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class I Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
I Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class I Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class
G Shares, Class H Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class I Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class I Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class I Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
I Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class I Shares received by the Corporation subsequent to
the date of first issuance of Class I Shares of any series,
unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item IX.
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(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class I Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class I Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class I Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class I Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item IX; and
(2) Shall, from time to time, make such
redemptions of each series of Class I Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item IX; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
I Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item IX prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class I Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class I Shares so to be redeemed
amounts equal to the redemption price of the Class I Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be
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shareholders with respect to such shares; and from and after
the time such notice shall have been so deposited and such
deposit of money shall have been so made, such holders shall
have no rights or claim against the Corporation with respect
to such shares, except only the right to receive such money
from such bank or trust company without interest or to
exercise before the redemption date any unexpired privileges
of conversion. In the event less than all of the outstanding
Class I Shares are to be redeemed, the Corporation shall
select by lot the shares so to be redeemed in such manner as
shall be prescribed by the Board of Directors.
(2) If the holders of Class I Shares which
have been called for redemption shall not within six
years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and
to such holders.
(c) Any Class I Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class I Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
I Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class I
Shares, unless all dividends on all Class I Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class I Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class I Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item IX, 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 Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
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(2) After payment to the holders of Class I
Shares of the full preferential amounts as aforesaid,
the holders of Class I Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class I Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
I Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class I Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class J
Shares, Class K Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class I Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class I Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class I Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class I Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class I
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class I Shares for any
dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
(2) In the event of default entitling holders of
Class I Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting
of such holders for the purpose of electing such
directors shall be called by the Secretary of the
Corporation upon written request of, or may be called
by, the holders of record of at least 10% of the
Class I Shares upon which such default in the payment
of dividends exists and notice thereof shall be given
in the same manner as that required for the annual
meeting of shareholders; provided, however, that the
Corporation shall not be required to call such
special meeting if the annual meeting of shareholders
shall be called to be held within 90 days after the
date of receipt of the foregoing written request from
the holders of Class I Shares. At any meeting at
which such holders of Class I Shares shall be
entitled to elect directors, holders of 50% of such
Class I Shares, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of
the holders of a
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majority of such shares so present at any such
meeting at which there shall be such a quorum shall
be sufficient to elect the members of the Board of
Directors which such holders of Class I Shares are
entitled to elect as herein provided. Notwithstanding
any provision of these Amended and Restated Articles
of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by
the holders of any class of shares fixing the number
of directors of the Corporation, the two directors
who may be elected by such holders of Class I Shares
pursuant to this Subsection shall serve in addition
to any other directors then in office or proposed to
be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent
any change otherwise permitted in the total number of
or classifications of directors of the Corporation or
require the resignation of any director elected
otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other
directors of the Corporation, the two directors
elected by such holders of Class I Shares shall be
elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class I Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class I Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class
J Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class I Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class I Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class I Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class I Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
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Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class I Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class I Shares or of any shares
ranking on a parity with or junior to the Class I
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class I Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class I Shares.
(e) In the event, and only to the extent, that (1)
Class I Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class I
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class I Shares
or of any shares ranking on a parity with or junior to the
Class I Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
X. The Class J Cumulative Preferred Shares. The Class J Shares shall
have the following express terms:
Section 1. Series. The Class J Shares may be issued from time
to time in one or more series. All Class J Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class J Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class K Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class K Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class J Shares, the Board of Directors
hereby is authorized to cause such shares to be
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issued in one or more series and, with respect to each such series to
determine and fix prior to the issuance thereof (and thereafter, to the
extent provided in clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item X) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class J Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class J Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
J Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion
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to the respective annual dividend rates fixed therefor, shall
have been paid upon or declared or set apart for all Class J
Shares of all series then issued and outstanding and entitled
to receive such dividend and (ii) the dividends payable for
the dividend periods terminating on the same or any earlier
date (but, with respect to Noncumulative Shares, only with
respect to the then current dividend period), ratably in
proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all
Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class
H Shares, Class I Shares, Class K Shares and Noncumulative
Shares then issued and outstanding and entitled to receive
such dividends.
(b) So long as any Class J Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class J Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class J Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
J Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class J Shares received by the Corporation subsequent to
the date of first issuance of Class J Shares of any series,
unless:
(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item X.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class J Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class J Shares shall be the amount
that the total dividends paid
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or made available to the holders of the Class J Shares for the
year bears to the Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class J Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item X; and
(2) Shall, from time to time, make such
redemptions of each series of Class J Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item X; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
J Shares to be redeemed at their respective addresses then
appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item X prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class J Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class J Shares so to be redeemed
amounts equal to the redemption price of the Class J Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class J Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class J Shares which have
been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all
responsibility in respect thereof and to such
holders.
(c) Any Class J Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking
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fund requirements provided for shares of such series, (3)
converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation, shall resume the status
of authorized but unissued Class J Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
J Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class J
Shares, unless all dividends on all Class J Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class J Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Class J Shares, the
amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item X, 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 Cumulative Shares and Noncumulative Shares of
the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably
upon all outstanding Cumulative Shares and Noncumulative
Shares in proportion to the full preferential amount to which
each such share is entitled.
(2) After payment to the holders of Class J
Shares of the full preferential amounts as aforesaid,
the holders of Class J Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class J Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
J Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class J Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C
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Shares, Class D Shares, Class E Shares, Class F Shares, Class
G Shares, Class H Shares, Class I Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been
conferred and are exercisable under the circumstances
described in Subsection 5(c), shall be entitled to elect, as
herein provided, a total of two members of the Board of
Directors of the Corporation; provided, however, that the
holders of such Class J Shares shall not exercise such special
class voting rights except at meetings of such shareholders
for the election of directors at which the holders of not less
than 50% of such Class J Shares are present in person or by
proxy; and provided further, that the special class voting
rights provided for in this paragraph when the same shall have
become vested shall remain so vested until all accrued and
unpaid dividends on such Class J Shares then outstanding shall
have been paid or declared and a sum sufficient for the
payment thereof set aside for payment, whereupon the holders
of such Class J Shares shall be divested of their special
class voting rights in respect of subsequent elections of
directors, subject to the revesting of such special class
voting rights in the event above specified in this paragraph.
All dividend payments made on the Class J Shares, at any time
during which the Corporation is in default in the payment of
dividends on such Class J Shares for any dividend period,
shall be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.
(2) In the event of default entitling holders of
Class J Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting
of such holders for the purpose of electing such
directors shall be called by the Secretary of the
Corporation upon written request of, or may be called
by, the holders of record of at least 10% of the
Class J Shares upon which such default in the payment
of dividends exists and notice thereof shall be given
in the same manner as that required for the annual
meeting of shareholders; provided, however, that the
Corporation shall not be required to call such
special meeting if the annual meeting of shareholders
shall be called to be held within 90 days after the
date of receipt of the foregoing written request from
the holders of Class J Shares. At any meeting at
which such holders of Class J Shares shall be
entitled to elect directors, holders of 50% of such
Class J Shares, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present
at any such meeting at which there shall be such a
quorum shall be sufficient to elect the members of
the Board of Directors which such holders of Class J
Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and
Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares
fixing the number of directors of the Corporation,
the two directors who may be elected by such holders
of Class J Shares pursuant to this Subsection shall
serve in addition to any other directors then in
office or proposed to be elected otherwise than
pursuant to this Subsection. Nothing in this
Subsection shall prevent any change otherwise
permitted in the total number of or classifications
of directors of the Corporation or require the
resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the
Corporation, the two directors elected by such
holders of Class J Shares shall be elected annually
for terms expiring at the next succeeding annual
meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class J Shares in
respect of elections of directors as provided in this
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Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class J Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class
I Shares, Class K Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class J Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class J Shares to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be
held with all such other shares and the Class J Shares voting
together as a single class for such directors, resulting in
the termination of the term of such previously elected
directors upon the election of such new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class J Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class J Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class J Shares or of any shares
ranking on a parity with or junior to the Class J
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class J Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class J Shares.
(e) In the event, and only to the extent, that (1)
Class J Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of
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each series of Class J Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose of voting on
such matters, shall be required for any amendment, alteration
or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles
of Incorporation, as amended, or of the Code of Regulations of
the Corporation which affects adversely and materially the
preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated Articles
of Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class J Shares
or of any shares ranking on a parity with or junior to the
Class J Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
XI. The Class K Cumulative Preferred Shares. The Class K Shares shall
have the following express terms:
Section 1. Series. The Class K Shares may be issued from time
to time in one or more series. All Class K Shares shall be of equal
rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be
cumulative. All Class K Shares shall rank on a parity with the Class A
Shares, the Class B Shares, the Class C Shares, the Class D Shares,
Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares and the Noncumulative Shares and shall be
identical to all Class A Shares, Class B Shares, Class C Shares, Class
D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares and Noncumulative Shares except
(1) in respect of the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), inclusive, of this
Section 1 and (2) only dividends on Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2
through 5, both inclusive, and Item XIII of this Division, which
provisions shall apply to all Class K Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more
series and, with respect to each such series to determine and fix prior
to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The date or dates from which dividends shall
accrue and be cumulative and the dates on which and the period
or periods for which dividends, if declared, shall be payable,
including the means by which such dates and periods may be
established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
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(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item XI) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
(a) The holders of Class K Shares of each series, in
preference to the holders of Common Shares and of any other
class of shares ranking junior to the Class K Shares, shall be
entitled to receive out of any funds legally available
therefor, and when and as declared by the Board of Directors,
dividends in cash at the rate or rates for such series fixed
in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of
shares of each particular series, from and after the date or
dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class
K Shares for any dividend period unless at the same time (i) a
like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in
proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart
for all Class K Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the
same or any earlier date (but, with respect to Noncumulative
Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or
set apart for all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class
G Shares, Class H Shares, Class I Shares, Class J Shares and
Noncumulative Shares then issued and outstanding and entitled
to receive such dividends.
(b) So long as any Class K Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Class K Shares,
shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other
shares ranking junior to the Class K Shares, nor shall any
Common Shares or any other shares ranking junior to the Class
K Shares be purchased, retired or otherwise acquired by the
Corporation, except out of the proceeds of the sale of Common
Shares or other shares of the Corporation ranking junior to
the Class K Shares received by the Corporation subsequent to
the date of first issuance of Class K Shares of any series,
unless:
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(1) All accrued and unpaid dividends on
Cumulative Shares, including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item XI.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Class K Shares shall be inapplicable to (i) any payments in
lieu of issuance of fractional shares thereof, whether upon
any merger, conversion, stock dividend or otherwise, (ii) the
conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its
rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital
stock hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Class K Shares shall be the amount
that the total dividends paid or made available to the holders
of the Class K Shares for the year bears to the Total
Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Class K Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item XI; and
(2) Shall, from time to time, make such
redemptions of each series of Class K Shares as may
be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item XI; and shall in each case pay all accrued and
unpaid dividends to the redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the Class
K Shares to be redeemed at their respective addresses then
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appearing on the books of the Corporation, not less than 30
days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Item XI prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
Corporation may deposit the aggregate redemption price of
Class K Shares to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, with any bank
or trust company in Cleveland, Ohio, or New York, New York,
having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the
respective holders of the Class K Shares so to be redeemed
amounts equal to the redemption price of the Class K Shares so
to be redeemed, together with such accrued and unpaid
dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of
money with such bank or trust company, such holders shall
cease to be shareholders with respect to such shares; and from
and after the time such notice shall have been so deposited
and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation
with respect to such shares, except only the right to receive
such money from such bank or trust company without interest or
to exercise before the redemption date any unexpired
privileges of conversion. In the event less than all of the
outstanding Class K Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.
(2) If the holders of Class K Shares which have
been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust
company and the Corporation shall be relieved of all
responsibility in respect thereof and to such
holders.
(c) Any Class K Shares which are (1) redeemed by the
Corporation pursuant to the provisions of this Section, (2)
purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series, (3) converted
in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation, shall resume the status of
authorized but unissued Class K Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) less than all of the Class
K Shares then outstanding except in accordance with a stock
purchase offer made to all holders of record of Class K
Shares, unless all dividends on all Class K Shares then
outstanding for all previous and current dividend periods
shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto
shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Class K Shares of any series shall
be entitled to receive in full out of the assets of the
Corporation, including its
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capital, before any amount shall be paid or distributed among
the holders of the Common Shares or any other shares ranking
junior to the Class K Shares, the amounts fixed with respect
to shares of such series in accordance with Section 1 of this
Item XI, 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 Cumulative Shares and
Noncumulative Shares of the full preferential amount to which
they are respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Cumulative Shares and
Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.
(2) After payment to the holders of Class K
Shares of the full preferential amounts as aforesaid,
the holders of Class K Shares, as such, shall have no
right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Class K Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b) (1) If, and so often as, the Corporation shall be
in default in the payment of dividends on any series of Class
K Shares at the time outstanding, whether or not earned or
declared, for a number of dividend payment periods, whether
consecutive or not, which in the aggregate contain at least
540 days, all holders of such Class K Shares, voting
separately as a class, together with all Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares and Noncumulative Shares upon which
like voting rights have been conferred and are exercisable
under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members
of the Board of Directors of the Corporation; provided,
however, that the holders of such Class K Shares shall not
exercise such special class voting rights except at meetings
of such shareholders for the election of directors at which
the holders of not less than 50% of such Class K Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until all accrued and unpaid dividends on such Class K Shares
then outstanding shall have been paid or declared and a sum
sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class K Shares shall be divested
of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such
special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class K
Shares, at any time during which the Corporation is in default
in the payment of dividends on such Class K Shares for any
dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation
is in default.
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(2) In the event of default entitling holders of
Class K Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting
of such holders for the purpose of electing such
directors shall be called by the Secretary of the
Corporation upon written request of, or may be called
by, the holders of record of at least 10% of the
Class K Shares upon which such default in the payment
of dividends exists and notice thereof shall be given
in the same manner as that required for the annual
meeting of shareholders; provided, however, that the
Corporation shall not be required to call such
special meeting if the annual meeting of shareholders
shall be called to be held within 90 days after the
date of receipt of the foregoing written request from
the holders of Class K Shares. At any meeting at
which such holders of Class K Shares shall be
entitled to elect directors, holders of 50% of such
Class K Shares, present in person or by proxy, shall
be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present
at any such meeting at which there shall be such a
quorum shall be sufficient to elect the members of
the Board of Directors which such holders of Class K
Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and
Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares
fixing the number of directors of the Corporation,
the two directors who may be elected by such holders
of Class K Shares pursuant to this Subsection shall
serve in addition to any other directors then in
office or proposed to be elected otherwise than
pursuant to this Subsection. Nothing in this
Subsection shall prevent any change otherwise
permitted in the total number of or classifications
of directors of the Corporation or require the
resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the
Corporation, the two directors elected by such
holders of Class K Shares shall be elected annually
for terms expiring at the next succeeding annual
meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Class K Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then
in office elected by such holders shall terminate
immediately thereupon. If the office of any director
elected by such holders voting as a class becomes
vacant by reason of death, resignation, removal from
office or otherwise, the remaining director elected
by such holders voting as a class may elect a
successor who shall hold office for the unexpired
term in respect of which such vacancy occurred.
(c) If at any time when the holders of Class K Shares
are entitled to elect directors pursuant to the foregoing
provisions of this Section the holders of any Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class
I Shares, Class J Shares or Noncumulative Shares are entitled
to elect directors pursuant hereto by reason of any default in
the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then
entitled to vote shall be combined (with each class of shares
having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such
case, the holders of Class K Shares and of all such other
shares then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the
default or event permitting the holders of Class K Shares to
elect directors, or prior to a written
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request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Class K Shares voting together as a single class for such
directors, resulting in the termination of the term of such
previously elected directors upon the election of such new
directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Class K Shares at the time outstanding,
voting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Amended and Restated
Articles of Incorporation, as amended, or of the Code
of Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Class K Shares which
are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or
outstanding number of Class K Shares or of any shares
ranking on a parity with or junior to the Class K
Shares nor the amendment of the provisions of the
Code of Regulations so as to change the number or
classification of directors of the Corporation shall
be deemed to affect adversely and materially
preferences or voting or other rights of the holders
of Class K Shares; or
(2) The authorization, creation or increase
in the authorized number of any shares, or any
security convertible into shares, in either case
ranking prior to such series of Class K Shares.
(e) In the event, and only to the extent, that (1)
Class K Shares are issued in more than one series and (2) Ohio
law permits the holders of a series of a class of capital
stock to vote separately as a class, the affirmative vote of
the holders of at least two-thirds of each series of Class K
Shares at the time outstanding, voting separately as a class,
given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be
required for any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation
which affects adversely and materially the preferences or
voting or other rights of the holders of such series which are
set forth in these Amended and Restated Articles of
Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of
Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Class K Shares
or of any shares ranking on a parity with or junior to the
Class K Shares nor the Amendment of the provisions of the Code
of Regulations so as to change the number or classification of
directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other
rights of the holders of such series.
XII. The Noncumulative Preferred Shares. The Noncumulative Preferred
Shares shall have the following express terms:
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Section 1. Series. The Noncumulative Shares may be issued from
time to time in one or more series. All Noncumulative Shares shall be
of equal rank and shall be identical, except in respect of the matters
that may be fixed by the Board of Directors as hereinafter provided,
and each share of a series shall be identical with all other shares of
such series, except as to the dates on which and the periods for which
dividends may be payable. All Noncumulative Shares shall rank on a
parity with the Cumulative Shares, and shall be identical to all
Cumulative Shares, except (1) in respect of the matters that may be
fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on the
Noncumulative Shares are noncumulative as set forth herein. Subject to
the provisions of Sections 2 through 5, inclusive, and Item XIII of
this Division, which provisions shall apply to all Noncumulative
Shares, the Board of Directors hereby is authorized to cause such
shares to be issued in one or more series, and with respect to each
such series, to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section) the
following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series,
including the means by which such rates may be established;
(d) The dates on which and the period or periods for
which dividends, if declared, shall be payable, including the
means by which such dates and periods may be established;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(d) or 5(e) of this Item XII) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended and Restated Articles of Incorporation, as amended,
fixing, with respect to each such series, the matters described in clauses (a)
through (i), both inclusive, of this Section and is authorized to take such
actions with respect thereto as may be required by law in order to effect such
amendments.
Section 2. Dividends.
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(a) The holders of Noncumulative Shares of each
series, in preference to the holders of Common Shares and of
any other class of shares ranking junior to the Noncumulative
Shares, shall be entitled to receive out of any funds legally
available therefor, if, when and as declared by the Board of
Directors, dividends in cash at the rate or rates for such
series fixed in accordance with the provisions of Section 1
above and no more, payable on the dates fixed for such series.
Such dividends shall accrue, in the case of shares of each
particular series, from and after the date or dates fixed with
respect to such series; provided, however, that if the Board
of Directors fails to declare a dividend payable on a dividend
payment date on any Noncumulative Shares, the holders of the
Noncumulative Shares shall have no right to receive a dividend
in respect of the dividend period ending on such dividend
payment date, and the Corporation shall have no obligation to
pay the dividend accrued for such period, whether or not
dividends on such Noncumulative Shares are declared payable on
any future dividend payment date. No dividends shall be paid
upon or declared or set apart for any series of the
Noncumulative Shares for any dividend period unless at the
same time (i) a like proportionate dividend for the then
current dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall have
been paid upon or declared or set apart for all Noncumulative
Shares of all series then issued and outstanding and entitled
to receive such dividend and (ii) the dividends payable for
the dividend periods terminating on the same or any earlier
date, ratably in proportion to the respective dividend rates
fixed therefor, shall have been paid upon or declared or set
apart for all Class A Shares, Class B Shares, Class C Shares,
Class D Shares and Class E Shares then issued and outstanding
and entitled to receive such dividends.
(b) So long as any Noncumulative Shares shall be
outstanding no dividend, except a dividend payable in Common
Shares or other shares ranking junior to the Noncumulative
Shares, shall be paid or declared or any distribution be made,
except as aforesaid, in respect of the Common Shares or any
other shares ranking junior to the Noncumulative Shares, nor
shall any Common Shares or any other shares ranking junior to
the Noncumulative Shares be purchased, retired or otherwise
acquired by the Corporation, except out of the proceeds of the
sale of Common Shares or other shares of the Corporation
ranking junior to the Noncumulative Shares received by the
Corporation subsequent to the date of first issuance of
Noncumulative Shares of any series, unless:
(1) All accrued and unpaid dividends on
Cumulative Shares including the full dividends for
all current dividend periods, shall have been
declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative
Shares for the then current dividend period shall
have been declared and paid or a sum sufficient for
payment therefor set apart; and
(3) There shall be no arrearages with
respect to the redemption of Cumulative Shares or
Noncumulative Shares of any series from any sinking
fund provided for shares of such series in accordance
with the provisions of Section 1 of this Item XII.
(c) The foregoing restrictions on the payment of
dividends or other distributions on, or on the purchase,
redemption retirement or other acquisition of, Common Shares
or any other shares ranking on a parity with or junior to the
Noncumulative Shares shall be inapplicable to (i) any payments
in lieu of issuance of fractional shares thereof, whether
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upon any merger, conversion, stock dividend or otherwise, (ii)
the conversion of Cumulative Shares or Noncumulative Shares
into Common Shares or (iii) the exercise by the Corporation of
its rights pursuant to Item XIV(d) of this Division A, Section
4(d) of Division B or any similar Section hereafter contained
in these Amended and Restated Articles of Incorporation with
respect to any other class or series of capital stock
hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects
to designate as "capital gain dividends" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year
to holders of all classes of stock (the "Total Dividends"),
then, to the extent permissible under the Code and to the
extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code,
the portion of the Capital Gains Amount that shall be
allocable to holders of the Noncumulative Shares shall be the
amount that the total dividends paid or made available to the
holders of the Noncumulative Shares for the year bears to the
Total Dividends.
Section 3. Redemption.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of
the Board of Directors, redeem all or any part of any
redeemable series of Noncumulative Shares at the time
outstanding at the applicable redemption price for
such series fixed in accordance with the provisions
of Section 1 of this Item XII; and
(2) Shall, from time to time, make such
redemptions of each series of Noncumulative Shares as
may be required to fulfill the requirements of any
sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this
Item XII; and shall, in each case, pay all unpaid
dividends for the then current dividend period to the
redemption date.
(b) (1) Notice of every such redemption shall be
mailed, postage prepaid, to the holders of record of the
Noncumulative Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not
less than 30 days nor more than 60 days prior to the date
fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to
Section 1 of this Item XII prior to the issuance thereof. At
any time after notice as provided above has been deposited in
the mail, the Corporation may deposit the aggregate redemption
price of Noncumulative Shares to be redeemed, together with
accrued and unpaid dividends thereon for the then current
dividend period to the redemption date, with any bank or trust
company in Cleveland, Ohio, or New York, New York, having
capital and surplus of not less than $100,000,000, named in
such notice and direct that there be paid to the respective
holders of the Noncumulative Shares so to be redeemed amounts
equal to the redemption price of the Noncumulative Shares so
to be redeemed together with such accrued and unpaid dividends
thereon for the then current dividend period, on surrender of
the share certificate or certificates held by such holders;
and upon the deposit of such notice in the mail and the making
of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such
shares; and from and after the time such notice shall have
been so deposited and such deposit of
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money shall have been so made, such holders shall have no
rights or claim against the Corporation with respect to such
shares, except only the right to receive such money from such
bank or trust company without interest or to exercise before
the redemption date any unexpired privileges of conversion. In
the event less than all of the outstanding Noncumulative
Shares are to be redeemed, the Corporation shall select by lot
the shares so to be redeemed in such manner as shall be
prescribed by the Board of Directors.
(2) If the holders of Noncumulative Shares which
have been called for redemption shall not within six
years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and
to such holders.
(c) Any Noncumulative Shares which are (1) redeemed
by the Corporation pursuant to the provisions of this Section,
(2) purchased and delivered in satisfaction of any sinking
fund requirements provided for shares of such series, (3)
converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation, shall resume the status
of authorized but unissued Noncumulative Shares without serial
designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Section (d) of Item XIV of
this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated
Articles of Incorporation, as amended, with respect to any
other class or series of capital stock hereafter created or
authorized, the Corporation may not purchase or redeem (for
sinking fund purposes or otherwise) of less than all of the
Noncumulative Shares then outstanding except in accordance
with a stock purchase offer made to all holders of record of
Noncumulative Shares, unless all dividends on all
Noncumulative Shares then outstanding for the then current
dividend period shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Noncumulative Shares of any series
shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or
any other shares ranking junior to the Noncumulative Shares,
the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item XII, plus an amount
equal to all dividends accrued and unpaid thereon for the then
current dividend period to the date of payment of the amount
due pursuant to such liquidation, dissolution or winding up of
the affairs of the Corporation. In the event the net assets of
the Corporation legally available therefor are insufficient to
permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which
they are respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Noncumulative Shares
in proportion to the full preferential amount to which each
such share is entitled.
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(2) After payment to the holders of Noncumulative
Shares of the full preferential amounts as aforesaid,
the holders of Noncumulative Shares, as such, shall
have no right or claim to any of the remaining assets
of the Corporation.
(b) The merger or consolidation of the Corporation
into or with any other Corporation, the merger of any other
Corporation into it, or the sale, lease or conveyance of all
or substantially all the assets of the Corporation, shall not
be deemed to be a dissolution, liquidation or winding up for
the purposes of this Section.
Section 5. Voting.
(a) The holders of Noncumulative Shares shall have no
voting rights, except as provided in this Section or required
by law.
(b)(1) If, and so often as, the Corporation shall not
have fully paid, or shall not have declared and set aside a
sum sufficient for the payment of, dividends on any series of
Noncumulative Shares at the time outstanding, for a number of
dividend payment periods, whether consecutive or not, which in
the aggregate contain at least 540 days, the holders of such
Noncumulative Shares, voting separately as a class, together
with all Cumulative Shares upon which like voting rights have
been conferred and are exercisable, shall be entitled to
elect, as herein provided, two members of the Board of
Directors of the Corporation; provided, however, that the
holders of such Noncumulative Shares shall not exercise such
special class voting rights except at meetings of such
shareholders for the election of directors at which the
holders of not less than 50% of such Noncumulative Shares are
present in person or by proxy; and provided further, that the
special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested
until the Corporation shall have fully paid, or shall have set
aside a sum sufficient for the payment of, dividends on such
Noncumulative Shares then outstanding for a number of
consecutive dividend payment periods which in the aggregate
contain at least 360 days, whereupon the holders of such
Noncumulative Shares shall be divested of their special class
voting rights in respect of subsequent elections of directors,
subject to the revesting of such special class voting rights
in the event above specified in this paragraph.
(2) In the event of default entitling holders of
Noncumulative Shares to elect two directors as
specified in paragraph (1) of this Subsection, a
special meeting of such holders for the purpose of
electing such directors shall be called by the
Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at
least 10% of the Noncumulative Shares upon which such
default in the payment of dividends exists and notice
thereof shall be given in the same manner as that
required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be
required to call such special meeting if the annual
meeting of shareholders shall be called to be held
within 90 days after the date of receipt of the
foregoing written request from the holders of
Noncumulative Shares. At any meeting at which such
holders of Noncumulative Shares shall be entitled to
elect directors, holders of 50% of such Noncumulative
Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present
at any such meeting at which there shall be such a
quorum shall be sufficient to elect the members of
the Board of Directors which such holders of
Noncumulative Shares are entitled to elect as herein
provided. Notwithstanding any provision of these
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Amended and Restated Articles of Incorporation, as
amended, or the Code of Regulations of the
Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the
Corporation, the two directors who may be elected by
such holders of Noncumulative Shares pursuant to this
Subsection shall serve in addition to any other
directors then in office or proposed to be elected
otherwise than pursuant to this Subsection. Nothing
in this Subsection shall prevent any change otherwise
permitted in the total number of or classifications
of directors of the Corporation nor require the
resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any
classification of the other directors of the
Corporation, the two directors elected by such
holders of Noncumulative Shares shall be elected
annually for terms expiring at the next succeeding
annual meeting of shareholders.
(3) Upon any divesting of the special class
voting rights of the holders of the Noncumulative
Shares in respect of elections of directors as
provided in this Subsection, the terms of office of
all directors then in office elected by such holders
shall terminate immediately thereupon. If the office
of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation,
removal from office or otherwise, the remaining
director elected by such holders voting as a class
may elect a successor who shall hold office for the
unexpired term in respect of which such vacancy
occurred.
(c) If at any time when the holders of Noncumulative
Shares are entitled to elect directors pursuant to the
foregoing provisions of this Section the holders of any
Cumulative Shares, are entitled to elect directors pursuant
hereto by reason of any default in the payment of dividends
thereon, then the voting rights of the Cumulative Shares and
Noncumulative Shares then entitled to vote shall be combined
(with class of shares having a number of votes proportional to
the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Noncumulative Shares and
of all such other shares then entitled so to vote, voting as a
class, shall elect such directors. If the holders of any such
other shares have elected such directors prior to the
happening of the default or event permitting the holders of
Noncumulative Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by
the Secretary of the Corporation as required above, then a new
election shall be held with all such other shares and the
Noncumulative Shares voting together as a single class for
such directors, resulting in the termination of the term of
such previously elected directors upon the election of such
new directors.
(d) The affirmative vote of the holders of at least
two-thirds of the Noncumulative Shares at the time
outstanding, voting separately as a class, given in person or
by proxy either in writing or at a meeting called for the
purpose, shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the
provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of
Regulations of the Corporation which affects
adversely and materially the preferences or voting or
other rights of the holders of Noncumulative Shares
which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided,
however, neither the amendment of these Amended and
Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or
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outstanding number of Noncumulative Shares or of any
shares ranking on a parity with or junior to the
Noncumulative Shares nor the amendment of the
provisions of the Code of Regulations so as to change
the number or classification of directors of the
Corporation shall be deemed to affect adversely and
materially preferences or voting or other rights of
the holders of Noncumulative Shares; or
(2) The authorization, creation or increase in
the authorized number of any shares, or any security
convertible into shares, in either case ranking prior
to such Noncumulative Shares.
(e) In the event, and only to the extent, that (1)
Noncumulative Shares are issued in more than one series and
(2) Ohio law permits the holders of a series of a class of
capital stock to vote separately as a class, the affirmative
vote of the holders of at least two-thirds of each series of
the Noncumulative Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in
writing or at a meeting called for the purpose of voting on
such matters, shall be required for any amendment, alteration
or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles
of Incorporation, as amended, or of the Code of Regulations of
the Corporation which affects adversely and materially the
preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however,
neither the amendment of these Amended and Restated Articles
of Incorporation, as amended, so as to authorize, create or
change the authorized or outstanding number of Noncumulative
Shares or of any shares remaining on a parity with or junior
to the Noncumulative Shares nor the amendment of the
provisions of the Code of Regulations so as to change the
number or classification of directors of the Corporation shall
be deemed to affect adversely and materially preferences or
voting or other rights of the holder of such series.
XIII. Definitions. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking
prior to" Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class
K Shares or Noncumulative Shares, such reference shall mean
and include all shares of the Corporation in respect of which
the rights of the holders thereof as to the payment of
dividends or as to distributions in the event of a voluntary
or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation are given preference over the
rights of the holders of Class A Shares, Class B Shares, Class
C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J
Shares, Class K Shares or Noncumulative Shares, as the case
may be;
(b) Whenever reference is made to shares "on a parity
with" Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares, such reference shall mean and include
all shares of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation rank equally (except as to the amounts fixed
therefor) with the rights of the holders of Class A Shares,
Class B Shares, Class C Shares, Class D
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Shares, Class E Shares, Class F Shares, Class G Shares, Class
H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares, as the case may be; and
(c) Whenever reference is made to shares "ranking
junior to" Class A Shares, Class B Shares, Class C Shares,
Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class
K Shares or Noncumulative Shares, such reference shall mean
and include all shares of the Corporation other than those
defined under Subsections (a) and (b) of this Section as
shares "ranking prior to" or "on a parity with" Class A
Shares, Class B Shares, Class C Shares, Class D Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares, as the case may be.
XIV. Restrictions on Transfer to Preserve Tax Benefit; Shares Subject
to Redemption.
(a) Definitions. For the purposes of this Item XIV of
this Division A of this Article FOURTH, the following terms
shall have the following meanings:
"Beneficial Ownership" shall mean ownership of
Preferred Shares by a Person who would be treated as an owner
of such Preferred Shares either directly or constructively
through the application of Section 544 of the Code, as
modified by Section 856(h) of the Code. The terms "Beneficial
Owner," "Beneficially Owns" and "Beneficially Owned" shall
have the correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
"Constructive Ownership" shall mean ownership of
Preferred Shares by a Person who would be treated as an owner
of such Preferred Shares either directly or constructively
through the application of Section 318 of the Code, as
modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
"Excess Preferred Shares" shall mean any Preferred
Shares (i) acquired or proposed to be acquired by any Person
pursuant to a Transfer to the extent that, if effective, such
Transfer would result in the transferee either Beneficially
Owning Preferred Shares or Constructively Owning Preferred
Shares in excess of the Ownership Limit, or (ii) which are the
subject of a Transfer that, if effective, which would result
in the Corporation being "closely held" within the meaning of
Section 856(h) of the Code.
"Market Price" shall mean, with respect to any series
of any class of Preferred Shares, the last reported sales
price of such series reported on the New York Stock Exchange
on the trading day immediately preceding the relevant date or,
if shares of such series are not then traded on the New York
Stock Exchange, the last reported sales price of shares of
such series on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system
over which the shares of such series may be traded, or if
shares of such series are not then traded over any exchange or
quotation system, then the market price of shares of such
series on the relevant date as determined in good faith by the
Board of Directors of the Corporation.
"Ownership Limit" shall mean, with respect to each
series of each class of Preferred Shares, 9.8% of the
outstanding shares of such series.
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"Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under
Section 401(a) or 501(c)(17) of the Code), a portion of a
trust permanently set aside for or to be used exclusively for
the purposes described in Section 642(c) of the Code, an
association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other
entity or a group as that term is used for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended;
provided, however, that a "person" does not mean an
underwriter which participates in a public offering of
Preferred Shares, for a period of 35 days following the
purchase by such underwriter of such Preferred Shares.
"Preferred Shares" shall mean, collectively, Class A
Shares, Class B Shares, Class C Shares, Class D Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares.
"REIT" shall mean a Real Estate Investment Trust
under Section 856 of the Code.
"Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition of Preferred Shares
(including, without limitation, (i) the granting of any option
or entering into any agreement for the sale, transfer or other
disposition of Preferred Shares or (ii) the sale, transfer,
assignment or other disposition of any securities or rights
convertible into or exchangeable for Preferred Shares),
whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section (i) of
this Item XIV of this Division A of this Article
FOURTH, no Person shall Beneficially Own or
Constructively Own shares of any series of any class
of Preferred Shares in excess of the Ownership Limit
applicable to such series.
(ii) Except as provided in Section (i) of
this Item XIV of this Division A of this Article
FOURTH, any Transfer that, if effective, would result
in any Person Beneficially Owning shares of any
series of any class of Preferred Shares in excess of
the Ownership Limit applicable to such series shall
be void ab initio as to the Transfer of such
Preferred Shares which would be otherwise
Beneficially Owned by such Person in excess of such
Ownership Limit, and the intended transferee shall
acquire no rights in such Preferred Shares.
(iii) Except as provided in Section (i) of
this Item XIV of this Division A of this Article
FOURTH, any Transfer that, if effective, would result
in any Person Constructively Owning shares of any
series of any class of Preferred Shares in excess of
the Ownership Limit applicable to such series shall
be void ab initio as to the Transfer of such
Preferred Shares which would be otherwise
Constructively Owned by such Person in excess of such
amount, and the intended transferee shall acquire no
rights in such Preferred Shares.
(iv) Notwithstanding any other provisions
contained in this Item XIV, any Transfer (whether or
not such Transfer is the result of a transaction
entered into through the facilities of the New York
Stock Exchange) or other event that,
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if effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h)
of the Code, or would otherwise result in the
Corporation failing to qualify as a REIT (including,
but not limited to, a Transfer or other event that
would result in the Corporation owning (directly or
Constructively) an interest in a tenant that is
described in Section 856(d)(2)(B) of the Code if the
income derived by the Corporation from such tenant
would cause the Corporation to fail to satisfy any of
the gross income requirement of Section 856(c) of the
Code) shall be void ab initio as to the Transfer of
the Preferred Shares or other event which would cause
the Corporation to be "closely held" within the
meaning of Section 856(h) of the Code or would
otherwise result in the Corporation failing to
qualify as a REIT; and the intended transferee or
owner or Constructive or Beneficial Owner shall
acquire or retain no rights in such Preferred Shares.
(v) For purposes of construing the foregoing
provisions, any attempt to transfer Preferred Shares
in violation of the Ownership Limit applicable to the
series of the class of such Preferred Shares (as such
Ownership Limit may be modified by the Board of
Directors pursuant to Section (h) of Item XIV) shall
be construed as causing such Preferred Shares to be
transferred by operation of law to the Corporation as
trustee of a trust for the exclusive benefit of the
person or persons to whom such Preferred Shares can
ultimately be transferred without violating the
Ownership Limit and any Excess Preferred Shares while
held in such trust shall not have any voting rights,
shall not be considered for purposes of any
shareholder vote or for determining a quorum for such
a vote, and shall not be entitled to any dividends or
other distributions.
(c) Remedies for Breach. If the Board of Directors or
its designees shall at any time determine in good faith that a
Transfer has taken place in violation of Section (b) of Item
XIV of this Division A of this Article FOURTH or that a Person
intends to acquire or has attempted to acquire beneficial
ownership (determined without reference to any rules of
attribution), Beneficial Ownership or Constructive Ownership
of any Preferred Shares of the Corporation in violation of
Section (b) of Item XIV of this Division A of this Article
FOURTH, or that any such Transfer, intended or attempted
acquisition or acquisition would jeopardize the status of the
Corporation as a REIT under the Code, the Board of Directors
or its designees shall take such actions as it deems advisable
to refuse to give effect or to prevent such Transfer,
including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting
proceedings to enjoin such Transfer and, in addition,
exercising its rights under Section (d) of Item XIV of this
Division A of Article FOURTH.
(d) Purchase Right in Excess Preferred Shares.
Beginning on the date of the occurrence of a Transfer which,
if consummated, in the good faith judgment of the Board of
Directors of the Corporation, could result in Excess Preferred
Shares the Excess Preferred Shares, subject to such transfer
shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to
the lesser of (i) the price per share in the transaction that
created such Excess Preferred Shares (or, in the case of a
devise or gift, the Market Price at the time of such devise or
gift) and (ii) the Market Price on the date the Corporation,
or its designee, accepts such offer. The Corporation shall
have the right to accept such offer for a period of 90 days
after the later of (i) the date of such Transfer and (ii) if
the Corporation does not receive a notice of such Transfer
pursuant to Section (e) of Item XIV of this Division A of this
Article FOURTH, the date
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the Board of Directors determines in good faith that such
Transfer has occurred. Prompt payment of the purchase price
shall be made in such reasonable manner as may be determined
by the Corporation. From and after the date fixed for purchase
by the Corporation, and so long as payment of the purchase
price for the Excess Preferred Shares to be so purchased shall
have been made or duly provided for, the holder of any Excess
Preferred Shares so called for purchase shall cease to be
entitled to dividends, distributions, voting rights and other
benefits with respect to such Excess Preferred Shares,
excepting only the right to payment of the purchase price
fixed as aforesaid. Any dividend or distribution paid to a
proposed transferee of Excess Preferred Shares prior to the
discovery by the Corporation that the Excess Preferred Shares
have been transferred in violation of Section (b) of Item XIV
of this Division A of this Article FOURTH shall be repaid to
the Corporation upon demand. If the foregoing provisions are
determined to be void or invalid by virtue of any legal
decision, statute, rule or regulation, then the intended
transferee of such Excess Preferred Shares shall be deemed, at
the option of the Corporation, to have acted as agent on
behalf of the Corporation in acquiring such Excess Preferred
Shares and to hold such Excess Preferred Shares on behalf of
the Corporation.
(e) Notice of Restricted Transfer. Any Person who
acquires or attempts to acquire Preferred Shares or other
securities in violation of subparagraph (b) of this Item XIV,
or any Person who owns or will own Excess Preferred Shares as
a result of an event under subparagraph (b) of this Item XIV,
shall immediately give written notice to the Corporation of
such event and shall provide to the Corporation such other
information as the Corporation may request in order to
determine the effect, if any, of such Transfer or attempted
Transfer or other event on the Corporation's status as a REIT.
(f) Owners Required to Provide Information. From and
after the date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0%
(or such other percentage, between 0.5% and 5.0%, as
provided in the regulations promulgated pursuant to
the Code) of the outstanding Preferred Shares of the
Corporation shall, within 30 days after January 1 of
each year, give written notice to the Corporation
stating the name and address of such Beneficial
Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such
Beneficial Owner shall provide to the Corporation
such additional information as the Corporation may
request in order to determine the effect, if any, of
such Beneficial Ownership on the Corporation's status
as a REIT.
(ii) each Person who is a Beneficial Owner
or Constructive Owner of Preferred Shares and each
Person (including the shareholder of record) who is
holding Preferred Shares for a Beneficial Owner or
Constructive Owner shall provide to the Corporation
such information that the Corporation may request, in
good faith, in order to determine the Corporation's
status as a REIT.
(g) Remedies Not Limited. Nothing contained in this
Division A of this Article FOURTH shall limit the authority of
the Board of Directors to take such other action as it deems
necessary or advisable to protect the Corporation and the
interests of its shareholders by preservation of the
Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the
application of any of the provisions of Item XIV of this
Division A of this Article FOURTH, including any
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definition contained in Section (a) of Item XIV, the Board of
Directors shall have the power to determine the application of
the provisions of this Item XIV with respect to any situation
based on the facts known to it.
(i) Exceptions.
(i) Subject to Section (b)(iv) of this Item
XIV of this Division A, the Board of Directors may
exempt a Person from the Ownership Limit applicable
to a series of a class of Preferred Shares if such
Person is not an individual (other than pension plans
described in Section 856(h)(3)) for purposes of
Section 542(a)(2) of the Code if the Board of
Directors obtains such representations and
undertakings from such Person as are reasonably
necessary to ascertain that no individual's
Beneficial Ownership of such Preferred Shares will
violate the Ownership Limit, and agrees that any
violation or attempted violation will result in such
Preferred Shares in excess of the Ownership Limit
being subject to repurchase by the Corporation as set
forth in Section (d) of Item XIV of this Division A
of this Article FOURTH.
(ii) The Board of Directors may exempt a
Person from the limitation on such Person
Constructively Owning Preferred Shares in excess of
the Ownership Limit applicable to a series of a class
of such Preferred Shares if such Person does not own
and represents that it will not own, directly or
constructively (by virtue of the application of
Section 318 of the Code, as modified by Section
856(d)(5) of the Code), more than a 9.8% interest (as
set forth in Section 856(d)(2)(B)) in a tenant of any
real property owned or leased by the Corporation, if
the Board of Directors obtains such representations
and undertakings from such Person as are reasonably
necessary to ascertain this fact and agrees that any
violation or attempted violation will result in such
Preferred Shares in excess of the Ownership Limit
being deemed to be Excess Preferred Shares and
subject to repurchase by the Corporation as set forth
in Section (d) of Item XIV of this Division A of this
Article FOURTH.
XV. Legend. Each certificate for Preferred Shares shall bear the
following legend:
"The Preferred Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own or Constructively Own shares of
any series of any class of Preferred Shares in excess of 9.8% of the outstanding
Preferred Shares of such series. Any Person who attempts to Beneficially Own or
Constructively Own shares of any series of any class of Preferred Shares in
excess of the above limitations must immediately notify the Corporation. All
capitalized terms in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Preferred Shares
represented hereby may be subject to repurchase by the Corporation on the terms
and conditions set forth in the Corporation's Articles of Incorporation.
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DIVISION B
Subject to the terms of the Cumulative Shares and the Noncumulative
Preferred Shares, the Common Shares shall have the following express terms:
Section 1. Dividend Rights. The holders of Common Shares shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Corporation, out of the assets of the Corporation which are by law available
therefor, dividends or distributions payable in cash, in property or in
securities of the Corporation.
Section 2. Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution of
the assets of, the Corporation, each holder of Common Shares shall be entitled
to receive, ratably with each other holder of Common Shares, that portion of the
assets of the Corporation available for distribution to its shareholders as the
number of Common Shares held by such holder bears to the total number of Common
Shares then outstanding.
Section 3. Voting Rights. The holders of Common Shares shall be
entitled to vote on all matters (for which holders of Common Shares shall be
entitled to vote thereon) at all meetings of the shareholders of the
Corporation, and shall be entitled to one vote for each Common Share entitled to
vote at such meeting.
Section 4. Restrictions on Transfer to Preserve Tax Benefit; Common
Shares Subject to Redemption.
(a) Definitions. For the purposes of this Section 4
of this Division B of this Article FOURTH, the following terms
shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Common
Shares by a Person who would be treated as an owner of such
Common Shares either directly or constructively through the
application of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
"Constructive Ownership" shall mean ownership of
Common Shares by a Person who would be treated as an owner of
such Common Shares either directly or Constructively through
the application of Section 318 of the Code, as modified by
Section 856(d)(5) of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have
the correlative meanings.
"Excess Shares" shall mean any Common Shares (i)
acquired or proposed to be acquired by any Person (other than
an Existing Holder) pursuant to a Transfer to the extent that,
if effective, such Transfer would result in the transferee
either (A) Beneficially Owning Common Shares in excess of the
Ownership Limit or (B) Constructively Owning Common Shares in
excess of the Related Party Limit, (ii) acquired or proposed
to be acquired by an Existing Holder pursuant to a Transfer to
the extent that, if effective, such Transfer would result in
such Existing Holder Beneficially Owning Common Shares in
excess of the Existing Holder Limit for such Existing Holder,
or (iii) which are the subject of a Transfer that, if
effective, which would result in (A) the
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Common Shares being owned by fewer than 100 Persons
(determined without reference to any rules of attribution), or
(B) the Corporation being "closely held" within the meaning of
Section 856(h) of the Code.
"Existing Holder" shall mean (i) Bert L. Wolstein,
(ii) Scott A. Wolstein, (iii) James A. Schoff, and (iv) any
Person to whom an Existing Holder Transfers Beneficial
Ownership of Common Shares causing such transferee to
Beneficially Own Common Shares in excess of the Ownership
Limit.
"Existing Holder Limit" (i) for any Existing Holder
who is an Existing Holder by virtue of clause (i), (ii) or
(iii) of the definition thereof, shall mean, initially, the
percentage of the outstanding Common Shares Beneficially Owned
by such Existing Holder upon the consummation of the Initial
Public Offering, and after any adjustment pursuant to Section
(4)(i) of this Division B of this Article FOURTH, shall mean
such percentage of the outstanding Common Shares as so
adjusted; and (ii) for any Existing Holder who becomes an
Existing Holder by virtue of clause (iv) of the definition
thereof, shall mean, initially, the percentage of the
outstanding Common Shares Beneficially Owned by such Existing
Holder at the time that such Existing Holder becomes an
Existing Holder, and after any adjustment pursuant to Section
4(i) of this Division B of this Article FOURTH, shall mean
such percentage of the outstanding Common Shares as so
adjusted. From and after the date of the Initial Public
Offering, the secretary of the Corporation shall maintain and,
upon request, make available to each Existing Holder, a
schedule which sets forth the then current Existing Holder
Limits for each Existing Holder.
"Initial Public Offering" means the sale of Common
Shares pursuant to the Corporation's first effective
registration statement for such Common Shares filed under the
Securities Act of 1933, as amended.
"Market Price" shall mean the last reported sales
price of Common Shares reported on the New York Stock Exchange
on the trading day immediately preceding the relevant date or,
if the Common Shares are not then traded on the New York Stock
Exchange, the last reported sales price of the Common Shares
on the trading day immediately preceding the relevant date as
reported on any exchange or quotation system over which the
Common Shares may be traded, or if the Common Shares are not
then traded over any exchange or quotation system, then the
market price of the Common Shares on the relevant date as
determined in good faith by the Board of Directors of the
Corporation.
"Ownership Limit" shall mean 5.0% of the outstanding
Common Shares of the Corporation.
"Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under
Section 401(a) or 501(c)(17) of the Code), a portion of a
trust permanently set aside for or to be used exclusively for
the purposes described in Section 642(c) of the Code, an
association, a private foundation within the meaning of
Section 509(a) of the Code, a joint stock company, other
entity or a group as that term is used for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended;
provided, however, that a "Person" does not mean an
underwriter which participates in a public offering of the
Common Shares, for a period of 35 days following the purchase
by such underwriter of the Common Shares.
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"REIT" shall mean a Real Estate Investment Trust
under Section 856 of the Code.
"Related Party Limit" shall mean 9.8% of the
outstanding Common Shares of the Corporation.
"Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition of Common Shares
(including, without limitation, (i) the granting of any option
or entering into any agreement for the sale, transfer or other
disposition of Common Shares or (ii) the sale, transfer,
assignment or other disposition of any securities or rights
convertible into or exchangeable for Common Shares), whether
voluntary or involuntary, whether of record or beneficially
and whether by operation of law or otherwise.
(b) Restrictions on Transfers.
(i) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, no
Person (other than an Existing Holder) shall
Beneficially Own Common Shares in excess of the
Ownership Limit and no Existing Holder shall
Beneficially Own Common Shares in excess of the
Existing Holder Limit for such Existing Holder.
(ii) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in any
Person (other than an Existing Holder) Beneficially
Owning Common Shares in excess of the Ownership Limit
shall be void ab initio as to the Transfer of such
Common Shares which would be otherwise Beneficially
Owned by such Person in excess of the Ownership
Limit, and the intended transferee shall acquire no
rights in such Common Shares.
(iii) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Common Shares in
excess of the applicable Existing Holder Limit shall
be void ab initio as to the Transfer of such Common
Shares which would be otherwise Beneficially Owned by
such Existing Holder in excess of the applicable
Existing Holder Limit, and such Existing Holder shall
acquire no rights in such Common Shares.
(iv) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in any
Person Constructively Owning Common Shares in excess
of the Related Party Limit shall be void ab initio as
to the Transfer of such Common Shares which would be
otherwise Constructively Owned by such Person in
excess of such amount, and the intended transferee
shall acquire no rights in such Common Shares.
(v) Except as provided in Section 4(i) of
this Division B of this Article FOURTH, from and
after the date of the Initial Public Offering, any
Transfer that, if effective, would result in the
Common Shares being beneficially owned by less than
100 Persons (determined without reference to any
rules of
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attribution) shall be void ab initio as to the
Transfer of such Common Shares which would be
otherwise beneficially owned by the transferee, and
the intended transferee shall acquire no rights in
such Common Shares.
(vi) From and after the date of the Initial
Public Offering, any Transfer that, if effective,
would result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code
shall be void ab initio as to the Transfer of the
Common Shares which would cause the Corporation to be
"closely held" within the meaning of Section 856(h)
of the Code, and the intended transferee shall
acquire no rights in such Common Shares.
(c) Remedies for Breach. If the Board of Directors or
its designees shall at any time determine in good faith that a
Transfer has taken place in violation of Section 4(b) of this
Division B of this Article FOURTH or that a Person intends to
acquire or has attempted to acquire beneficial ownership
(determined without reference to any rules of attribution),
Beneficial Ownership or Constructive Ownership of any Common
Shares of the Corporation in violation of Section 4(b) of this
Division B of this Article FOURTH, or that any such Transfer,
intended or attempted acquisition or acquisition would
jeopardize the status of the Corporation as a REIT under the
Code, the Board of Directors or its designees shall take such
actions as it deems advisable to refuse to give effect or to
prevent such Transfer, including, but not limited to, refusing
to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer
and, in addition, exercising its rights under Section 4(d) of
this Division B of this Article FOURTH.
(d) Purchase Right in Excess Shares. Beginning on the
date of the occurrence of a Transfer which, if consummated, in
the good faith judgment of the Board of Directors of the
Corporation, could result in Excess Shares, such Excess Shares
shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to
the lesser of (i) the price per share in the transaction that
created such Excess Shares (or, in the case of a devise or
gift, the Market Price at the time of such devise or gift) and
(ii) the Market Price on the date the Corporation, or its
designee, accepts such offer. The Corporation shall have the
right to accept such offer for a period of ninety days after
the later of (i) the date of such Transfer and (ii) if the
Corporation does not receive a notice of such Transfer
pursuant to Section 4(e) of this Division B of this Article
FOURTH, the date the Board of Directors determines in good
faith that such Transfer has occurred. Prompt payment of the
purchase price shall be made in such reasonable manner as may
be determined by the Corporation. From and after the date
fixed for purchase by the Corporation, and so long as payment
of the purchase price for the Excess Shares to be so purchased
shall have been made or duly provided for, the holder of any
Excess Shares so called for purchase shall cease to be
entitled to dividends, distributions, voting rights and other
benefits with respect to such Excess Shares, excepting only
the right to payment of the purchase price fixed as aforesaid.
Any dividend or distribution paid to a proposed transferee of
Excess Shares prior to the discovery by the Corporation that
the Excess Shares have been transferred in violation of
Section 4(b) of this Division B of this Article FOURTH shall
be repaid to the Corporation upon demand. If the foregoing
provisions are determined to be void or invalid by virtue of
any legal decision, statute, rule or regulation, then the
intended transferee of such Excess Shares shall be deemed, at
the option of the Corporation, to have acted as agent on
behalf of the Corporation in acquiring such Excess Shares and
to hold such Excess Shares on behalf of the Corporation.
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(e) Notice of Restricted Transfer. Any Person who
acquires or intends to acquire shares in violation of Section
4(b) of this Division B of this Article FOURTH or any Person
who is a transferee of Excess Shares shall immediately give
written notice to the Corporation of such event and shall
provide to the Corporation such other information as the
Corporation may request in order to determine the effect, if
any, of such Transfer or intended Transfer on the
Corporation's status as a REIT.
(f) Owners Required to Provide Information. From and
after the date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0%
(or such other percentage, between 0.5% and 5.0%, as
provided in the regulations promulgated pursuant to
the Code) of the outstanding Common Shares of the
Corporation shall, within 30 days after January 1 of
each year, give written notice to the Corporation
stating the name and address of such Beneficial
Owner, the number of shares Beneficially Owned, and
description of how such shares are held. Each such
Beneficial Owner shall provide to the Corporation
such additional information as the Corporation may
request in order to determine the effect, if any, of
such Beneficial Ownership on the Corporation's status
as a REIT.
(ii) each Person who is a Beneficial Owner
or Constructive Owner of Common Shares and each
Person (including the shareholder of record) who is
holding Common Shares for a Beneficial Owner or
Constructive Owner shall provide to the Corporation
such information that the Corporation may request, in
good faith, in order to determine the Corporation's
status as a REIT.
(g) Remedies Not Limited. Nothing contained in this
Division B of this Article FOURTH shall limit the authority of
the Board of Directors to take such other action as it deems
necessary or advisable to protect the Corporation and the
interests of its shareholders by preservation of the
Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the
application of any of the provisions of Section 4 of this
Division B of this Article FOURTH, including any definition
contained in Section 4(a), the Board of Directors shall have
the power to determine the application of the provisions of
this Section 4 with respect to any situation based on the
facts known to it.
(i) Modification of Existing Holder Limits. Subject
to the provisions of Section 4(k) of this Division B, the
Existing Holder Limits may be modified as follows:
(i) Subject to the limitations provided in
Section 4(k), any Existing Holder may Transfer Common
Shares to a Person who is already an Existing Holder
up to the number of Common Shares Beneficially Owned
by such transferor Existing Holder in excess of the
Ownership Limit. Any such Transfer will decrease the
Existing Holder Limit for such transferor Existing
Holder and increase the Existing Holder Limit for
such transferee Existing Holder by the percentage of
the outstanding Common Shares so Transferred. The
transferor Existing Holder shall give the Board of
Directors of the Corporation prior written notice of
any such Transfer.
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(ii) Any grant of a stock option pursuant to
a stock option plan approved by the shareholders of
the Corporation shall increase the Existing Holder
Limit for the affected Existing Holder to the maximum
extent possible under Section 4(k) to permit the
Beneficial Ownership of the Common Shares issuable
upon the exercise of such stock option.
(iii) The Board of Directors may reduce the
Existing Holder Limit for any Existing Holder, with
the written consent of such Existing Holder, after
any Transfer permitted in this Section 4 by such
Existing Holder to a Person other than an Existing
Holder or after the lapse (without exercise) of a
stock option described in Section 4(i)(ii).
(iv) Any Common Shares issued to an Existing
Holder pursuant to a dividend reinvestment plan
adopted by the Corporation shall increase the
Existing Holder Limit for the Existing Holder to the
maximum extent possible under Section 4(k) to permit
the Beneficial Ownership of such Common Shares.
(j) Modification of Ownership Limit. Subject to the
limitations provided in Section 4(k) of this Division B, the
Board of Directors may from time to time increase the
Ownership Limit.
(k) Limitations on Modifications. Notwithstanding any
other provision of this Division B of this Article FOURTH:
(i) Neither the Ownership Limit nor any
Existing Holder Limit may be increased (nor may any
additional Existing Holder Limit be created) if,
after giving effect to such increase (or creation),
five Beneficial Owners of Common Shares (including
all of the then Existing Holders) could Beneficially
Own, in the aggregate, more than 49.6% of the
outstanding Common Shares.
(ii) Prior to the modification of any
Existing Holder Limit or Ownership Limit pursuant to
Section 4(i) or Section 4(j) of this Division B of
this Article FOURTH, the Board of Directors of the
Corporation may require such opinions of counsel,
affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or
ensure the Corporation's status as a REIT.
(iii) No Existing Holder Limit shall be
reduced to a percentage which is less than the
Ownership Limit.
(iv) The Ownership Limit may not be
increased to a percentage which is greater than 9.8%.
(v) The Related Party Limit may not be
increased to a percentage which is greater than 9.8%.
(l) Exceptions.
(i) The Board of Directors, with a ruling
from the Internal Revenue Service or an opinion of
counsel, may exempt a Person from the Ownership
Limits or the Existing Holder Limits, as the case may
be, if such Person is not an individual for purposes
of Section 542(a)(2) of the Code and the Board of
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Directors obtains such representations and
undertakings from such Person as are reasonably
necessary to ascertain that no individual's
Beneficial Ownership of such Common Shares will
violate the Ownership Limit or the applicable
Existing Holder Limit, as the case may be, and agrees
that any violation or attempted violation will result
in such Common Shares in excess of 5.0% of the
outstanding Common Shares being deemed to be Excess
Shares and subject to repurchase by the Corporation
as set forth in Section 4(d) of this Division B of
this Article FOURTH.
(ii) The Board of Directors, with a ruling
from the Internal Revenue Service or an opinion of
counsel, may exempt a Person from the limitation on
such Person Constructively Owning Common Shares in
excess of the Related Party Limit if such Person does
not own and represents that it will not own, directly
or constructively (by virtue of the application of
Section 318 of the Code, as modified by Section
856(d)(5) of the Code), more than a 9.9% interest (as
set forth in Section 856(d)(2)(B) in a tenant of any
real property owned or leased by the Corporation, and
the Corporation obtains such representations and
undertakings from such Person as are reasonably
necessary to ascertain this fact and agrees that any
violation or attempted violation will result in such
Common Shares in excess of 9.8% being deemed to be
Excess Shares and subject to repurchase by the
Corporation as set forth in Section 4(d) of this
Division B of this Article FOURTH.
Section 5. Legend. Each certificate for Common Shares shall bear the
following legend:
"The Common Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. Subject to certain provisions of the Corporation's Articles of
Incorporation, no Person may Beneficially Own Common Shares in excess of 5.0% of
the outstanding Common Shares of the Corporation (unless such Person is an
Existing Holder) and no Person (other than an Existing Holder who Constructively
Owns in excess of 9.8% of the Common Shares immediately following the
consummation of the Initial Public Offering) may Constructively Own Common
Shares in excess of 9.8% of the outstanding Common Shares of the Corporation.
Any Person who attempts to Beneficially Own or Constructively Own Common Shares
in excess of the above limitations must immediately notify the Corporation. All
capitalized items in this legend have the meanings defined in the Corporation's
Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If
the restrictions on transfer are violated, certain of the Common Shares
represented may be subject to repurchase by the Corporation on the terms and
conditions set forth in the Corporation's Articles of Incorporation."
Section 6. Securities Exchange Transactions. Notwithstanding any
provision contained herein to the contrary, nothing in these Amended and
Restated Articles of Incorporation shall preclude the settlement of any
transaction entered into through the facilities of the New York Stock Exchange.
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CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
DEVELOPERS DIVERSIFIED REALTY CORPORATION
Scott A. Wolstein, Chairman of the Board of Directors and
Chief Executive Officer, and Joan U. Allgood, Secretary, of Developers
Diversified Realty Corporation, an Ohio corporation (the "Company"), do hereby
certify that at a meeting of the Board of Directors of the Company held on May
26, 1999, the following resolution to amend the Amended and Restated Articles of
Incorporation, as amended, of the Company was adopted pursuant to the authority
granted by Section 1701.70(B)(1) of the Ohio Revised Code:
RESOLVED, that the Amended and Restated Articles of
Incorporation, as amended, of the Company be, and they hereby are, amended by
adding at the end of Division A-V of Article FOURTH a new Section 6 that reads
as follows:
SECTION 6. CLASS E SERIES I CUMULATIVE PREFERRED SHARES.
(a) DESIGNATION AND AMOUNT. Of the 750,000 authorized Class E
Cumulative Preferred Shares, without par value, 750,000 are designated as a
series designated as "Class E Series I Cumulative Preferred Shares" (the "Series
I Preferred Shares"). The Series I Preferred Shares have the express terms set
forth in this Division as being applicable to all Preferred Shares as a class
and, in addition, the following express terms applicable to all Series I
Preferred Shares as a series of Preferred Shares. The number of Series I
Preferred Shares may be increased or decreased by resolution of the Board of
Directors and by the filing of a certificate of amendment pursuant to the
provisions of the General Corporation Law of the State of Ohio stating that such
increase or reduction has been so authorized; however, no decrease shall reduce
the number of Series I Preferred Shares to a number less than that of the Series
I Preferred Shares then outstanding plus the number of Series I Preferred Shares
issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Company.
(b) DIVIDENDS AND DISTRIBUTIONS.
(1)(i) Subject to the rights of the holders of any series of
preferred shares (or any similar shares) ranking prior to the Series I
Preferred Shares with respect to dividends, the holders of Series I
Preferred Shares, in preference to the holders of Common Shares and of
any other junior shares, will 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 the fifteenth day
of 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
issuance of a Series I Preferred Share or fraction thereof, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $10.00 or (b) subject to the provisions for
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adjustment hereinafter set forth, 10,000 times the aggregate per share
amount of all cash dividends, and 10,000 times the aggregate per share
amount (payable in kind) of all noncash dividends or other
distributions other than a dividend payable in Common Shares or a
subdivision of the outstanding Common Shares (by reclassification or
otherwise), declared on the Common Shares after the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, after the first issuance of any
Series I Preferred Share or fraction thereof. The multiple of cash and
noncash dividends declared on the Common Shares to which holders of the
Series I Preferred Shares are entitled, which is 10,000 initially but
which will be adjusted from time to time as hereinafter provided, is
hereinafter referred to as the "Dividend Multiple." If the Company at
any time after May 26, 1999 (the "Rights Declaration Date"): (i)
declares or pays any dividend on the Common Shares payable in Common
Shares, or (ii) effects a subdivision or combination or consolidation
of the outstanding Common Shares (by reclassification or otherwise than
by payment of a dividend in Common Shares) into a greater or lesser
number of Common Shares, then in each such case the Dividend Multiple
thereafter applicable to the determination of the amount of dividends
that holders of Series I Preferred Shares are entitled to receive will
be the Dividend Multiple applicable immediately prior to that event
multiplied by a fraction, the numerator of which is the number of
Common Shares outstanding immediately after that event and the
denominator of which is the number of Common Shares that were
outstanding immediately prior to that event.
(ii) Notwithstanding anything else contained in this paragraph
(1), the Company shall, out of funds legally available for that
purpose, declare a dividend or distribution on the Series I Preferred
Shares as provided in this paragraph (1) immediately after it declares
a dividend or distribution on the Common Shares (other than a dividend
payable in Common Shares); but if no dividend or distribution has been
declared on the Common Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the Series I Preferred
Shares shall nevertheless accrue on such subsequent Quarterly Dividend
Payment Date.
(2) Dividends will begin to accrue and be cumulative on
outstanding Series I Preferred Shares from the Quarterly Dividend Payment Date
next preceding the date of issue of such Series I Preferred Shares, unless the
date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares will 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 Series I Preferred Shares entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends will begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends will not bear
interest. Dividends paid on the Series I Preferred Shares in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares will be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix in accordance
with applicable law a record date for the determination of holders of Series I
Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon,
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which record date will be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable law.
(c) REACQUIRED SHARES. Any Series I Preferred Shares purchased
or otherwise acquired by the Company in any manner whatsoever will be retired
and canceled promptly after the acquisition thereof. All such shares will upon
their cancellation become authorized but unissued preferred shares and may be
reissued as part of a new series of Preferred Shares to be created by resolution
or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(d) LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the Company,
no distribution may be made (x) to the holders of shares ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series I
Preferred Shares unless, prior thereto, the holders of Series I Preferred Shares
shall have received an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment,
plus an amount equal to the greater of (1) $10,000.00 per share or (2) an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 10,000 times the aggregate amount to be distributed per
share to holders of Common Shares, or (y) to the holders of shares ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series I Preferred Shares, except distributions made ratably on the
Series I Preferred Shares and all other 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. If the Company at any time after the
Rights Declaration Date (i) declares or pays any dividend on Common Shares
payable in Common Shares, or (ii) effects a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares) into a greater or lesser number
of Common Shares, then in each such case the aggregate amount per share to which
holders of Series I Preferred Shares were entitled immediately prior to such
event under clause (x) of the preceding sentence will be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
Neither the consolidation of nor merging of the Company with
or into any other corporation or corporations, nor the sale or other transfer of
all or substantially all of the assets of the Company, will be considered to be
a liquidation, dissolution or winding up of the Company within the meaning of
this paragraph (d).
(e) CONSOLIDATION, MERGER, ETC. If the Company shall enter
into any consolidation, merger, combination or other transaction in which the
Common Shares are exchanged for or changed into other shares, stock or
securities, cash or any other property, then in any such case the Series I
Preferred Shares will at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 10,000 times the aggregate amount of shares, stock, securities, or
other property, as the case may be, into which or for which each Common Share is
changed or exchanged, plus accrued and unpaid dividends, if any, payable with
respect to the Series I Preferred Shares. If the
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Company at any time after the Rights Declaration Date (i) declares or pays any
dividend on Common Shares payable in Common Shares, or (ii) effects a
subdivision or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of Series I Preferred Shares will be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
(f) REDEMPTION. The Series I Preferred Shares are not
redeemable, but the foregoing does not limit the ability of the Company to
purchase or otherwise deal in the Series I Preferred Shares to the extent
otherwise permitted hereby and by law.
(g) AMENDMENT. The Amended and Restated Articles of
Incorporation of the Company, as amended, may not be amended in any manner that
would materially alter or change the powers, preferences or special rights of
the Series I Preferred Shares so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the outstanding Series
I Preferred Shares, voting separately as a class.
(h) FRACTIONAL SHARES. SERIES I Preferred Shares may be issued
in whole shares or in any fraction of a share that is one ten-thousandth
(1/10,000th) of a share or any integral multiple of such fraction, which will
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and have
the benefit of all other rights of holders of Series I Preferred Shares. In lieu
of fractional shares, the Company may elect to make a cash payment as provided
in that certain Rights Agreement dated as of May 26, 1999, between the Company
and National City Bank, a national banking association, as rights agent, for
fractions of a share smaller than one ten-thousandth (1/10,000th) of a share or
any integral multiple thereof.
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IN WITNESS WHEREOF, we have executed this instrument in one or
more counterparts as of May 31, 1999.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
/s/ Scott A. Wolstein
Scott A. Wolstein, Chairman of the Board
of Directors and Chief Executive Officer
/s/ Joan U. Allgood
Joan U. Allgood, Secretary