SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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MIAMI COMPUTER SUPPLY CORPORATION
---------------------------------
(Exact Name of Registrant as Specified in its charter)
Ohio 31-1001529
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(State of incorporation or organization) (IRS Employer Identification No.)
3884 Indian Ripple Road
Dayton, Ohio 45440
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(Address of principal executive offices) (including zip code)
If this Form relates to the registration If this Form relates to the
of a class of debt securities and is registration of a class of debt
effective upon filing pursuant to General securities and is to become
Instruction A(c)(i) please check effective simultaneously with the
the following box. |_| effectiveness of a concurrent
registration statement under the
Securities Act of 1933 pursuant
to General Instruction A(c)(2)
please check the following box.
|_|
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value per share
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(Title of Class)
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Miami Computer Supply Corporation
Form 8-A
Page 2
Item 1. Description of Registrant's Securities to be Registered.
See "Description of Capital Stock" on pages 72 to 73 of the form
of preliminary prospectus included in the Registrant's Registration Statement on
Form S-1, dated September 25, 1996 (Registration No. 333-12689) which is hereby
incorporated by reference.
Item 2. Exhibits.
1.0 Form of Stock Certificate.
2.0 Amended and Restated Articles of Incorporation.
3.0 Amended and Restated Code of Regulations.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
MIAMI COMPUTER SUPPLY CORPORATION
Date: October 14, 1996 By: /s/ Albert L. Schwarz
---------------------------
Albert L. Schwarz
President
3
[Stock certificate number] [Number of shares]
______ _______
COMMON STOCK, NO PAR VALUE
MIAMI COMPUTER SUPPLY CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
This certifies that ________________________________ is the registered
holder of _________________________ fully paid and non-assessable shares of the
Common Stock, no par value per share, of Miami Computer Supply Corporation,
Dayton, Ohio (the "Corporation"), incorporated under the laws of the State of
Ohio.
The shares evidenced by this Certificate are subject to restrictions on
Transfer (noted on the reverse side hereof), and further are transferable only
on the books of the Corporation by the holder hereof, in person or by a duly
authorized attorney or legal representative, upon surrender of this Certificate
properly endorsed. This Certificate and the shares represented hereby are
subject to all the provisions of the Amended and Restated Articles of
Incorporation and Amended and Restated Code of Regulations of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by the facsimile signatures of its duly authorized officers and has
caused its facsimile seal to be affixed hereto.
Dated: _______________ ____, 1996
(SEAL)
___________________________ __________________________________
Thomas C. Winstel Albert L. Schwarz
Secretary President
<PAGE>
Countersigned and Registered:
_____________________ TRUST COMPANY
(__________, ____) Transfer Agent
and Registrar
By:
______________________
Authorized Signature
<PAGE>
MIAMI COMPUTER SUPPLY CORPORATION
Dayton, Ohio
Common Stock, No Par Value
The shares represented by this Certificate are subject to limitations and
restrictions as set forth in the Amended and Restated Articles of Incorporation
("Articles") of the Corporation which are on file in the office of the Ohio
Secretary of State, and the Amended and Restated Code of Regulations
("Regulations") of the Corporation which are on file with the Secretary of the
Corporation. The Corporation will furnish to any stockholder upon request and
without charge a full statement of the designations, preferences, limitations
and relative rights of the shares of each class authorized to be issued. The
Articles and Regulations, inter alia: (i) deny preemptive rights of stockholders
to acquire unissued equity or debt of the Corporation or securities convertible
into any class or series of any equity or debt of the Corporation; (ii) prohibit
cumulative voting in the election of directors; (iii) permit the Board of
Directors to issue additional shares of the Common Stock, no par value per
share, and to issue shares of preferred stock, no par value per share, without
further stockholder action; (iv) permit the Board of Directors to set the
designations, rights, preferences and limitations of the preferred stock without
further stockholder action; and (v) require prior notice to the Board of
Directors in the event of a stockholder proposal or nomination to the Board of
Directors. This notice is not an amendment or supplement to the Articles and is
given solely as notice of the existence thereof.
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____ Custodian ______
TEN ENT -- as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts to
JT TEN -- as joint tenants with Minors Act __________
right of survivorship (State)
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, _________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAXPAYER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________
________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________ shares of Common Stock represented by this Certificate,
and do hereby irrevocably constitute and appoint _________________ as Attorney,
to transfer the said shares on the books of the within named Corporation, with
full power of substitution.
Dated: ___________________
NOTICE: The signature(s) to ___________________________________
this assignment must
correspond with the name(s)
as written upon the face of
the certificate in every ___________________________________
particular, without
alteration or enlargement
or any change whatever. -----------------------------------
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a major stock
exchange.
-----------------------------------
ARTICLES
OF
AMENDMENT AND RESTATEMENT
OF THE
ARTICLES OF INCORPORATION
OF
MIAMI COMPUTER SUPPLY, INC.
The undersigned, Albert L. Schwarz, President, and Thomas C. Winstel,
Secretary, of Miami Computer Supply, Inc., an Ohio corporation for profit,
do hereby certify to the Secretary of State of the State of Ohio (the
"Secretary") as follows that:
The following Articles of Amendment and Restatement ("Articles of
Amendment") hereby amend and completely restate the Amended and Restated
Articles of Incorporation ("Articles of Incorporation") of Miami Computer
Supply, Inc. (the "Corporation"), as filed with the Secretary on December 8,
1995.
Upon the filing (the "Effective Time") of these Articles of Amendment
pursuant to the Ohio General Corporation Law (the "OGCL"), (i) the 1,194 shares
of the Corporation's Voting Common Shares without par value, issued and
outstanding immediately prior to the Effective Time (the "Old Voting Common
Stock") shall be reclassified as and changed into 238,800 validly issued, fully
paid and non-assessable shares of Common Stock authorized by Article V hereof,
and (ii) the 10,746 shares of the Corporation's Nonvoting Common Shares without
par value, issued and outstanding immediately prior to the Effective Time (the
"Old Nonvoting Common Stock") shall be reclassified as and changed into
2,149,200 validly issued, fully paid and non-assessable shares of Common Stock
authorized by Article V hereof. This recapitalization shall represent a 200 for
1 stock split. Each certificate that heretofore represented a share or shares of
Old Voting Common Stock or Old Nonvoting Common Stock shall, immediately after
the Effective Time, represent the number of shares of Common Stock into which
the shares of Old Voting Common Stock and Old Nonvoting Common Stock represented
by such certificates shall have been reclassified.
The Articles of Amendment were unanimously adopted by a resolution of the
Board of Directors of the Corporation on August 13, 1996, which resolution set
forth the proposed amendment and restatement and declared it advisable and
directed that the proposed amendment and restatement be submitted for
consideration by the stockholders of the Corporation. The Articles of Amendment
were approved by all of the stockholders of the Corporation who would be
entitled to notice of a meeting held for that purpose by unanimous written
consent on September 18, 1996.
The Corporation desires to restate its Articles of Incorporation as
currently in effect and the provisions set forth in the Articles of Amendment
include each and every charter provision currently in effect. The following
Articles of Amendment hereby amend and restate the Articles of Incorporation in
its entirety and were adopted to supersede and take the place of the Articles
of Incorporation and all amendments thereto, as follows:
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Miami Computer Supply, Inc.
Articles of Amendment
Page 2
ARTICLE I
NAME; PURPOSE OF AMENDMENT AND RESTATEMENT
A. Name. The name of the corporation is Miami Computer Supply Corporation
(hereinafter referred to as the "Corporation").
B. Purpose of Amendment and Restatement. These amended and restated
Articles of Incorporation take the place and supersede the Corporation's
existing Articles of Incorporation as heretofore amended.
ARTICLE II
DURATION
Duration. The period of duration of the existence of the Corporation is
perpetual.
ARTICLE III
PURPOSE; EFFECTIVE DATE
Purpose and Effective Date. The purpose of the Corporation is to sell
computer equipment, accessories and supplies in the United States of America and
in other countries at such times and places and in such manner as may be
permitted under the applicable laws of the United States, the State of Ohio and
the several states and to engage in any other lawful activity or business for
which a corporation may be incorporated under the OGCL. The Corporation shall
have all of the general powers of a corporation as provided by the OGCL. These
Articles of Amendment shall become effective upon the date that they are
accepted by the Secretary for record.
ARTICLE IV
PRINCIPAL OFFICE
Principal Office. The address of the principal office of the Corporation in
the State of Ohio, Dayton, Ohio, Montgomery County, until such time as the Board
of Directors shall direct the establishment of a different principal office in
compliance with the Corporation's Code of Regulations (the "Regulations") and
applicable Ohio law.
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Miami Computer Supply, Inc.
Articles of Amendment
Page 3
ARTICLE V
CAPITAL STOCK
Capital Stock. Immediately before the filing of these Articles of
Amendment, the Corporation had the authority to issue up to twelve thousand
(12,000) common shares without par value, of which one thousand, two hundred
(1,200) were Voting Common Shares and ten thousand, eight hundred (10,800) were
Nonvoting Common Shares. Pursuant to these Articles of Amendment, the total
number of shares of capital stock which the Corporation has authority to issue
is thirty-five million (35,000,000), of which thirty million (30,000,000) shall
be common stock, no par value per share (hereinafter the "Common Stock") and of
which five million (5,000,000) shall be preferred stock, no par value per share
(hereinafter the "Preferred Stock"). The Board of Directors shall have the
authority to establish series of unissued shares of any class of capital stock
by fixing and determining the number, designations, preferences, limitations and
relative rights, including voting rights, of the shares of any series so
established to the same extent that such number, designations, preferences,
limitations and relative rights could be stated if fully set forth in these
Articles of Amendment. Except to the extent required by governing law, the
shares of capital stock may be issued from time to time by resolution of the
Board of Directors without further approval of stockholders. The Corporation
shall have the authority to purchase its capital stock out of funds lawfully
available therefor, which capital stock, unless otherwise stated herein or in
any resolution relating to the Preferred Stock, shall constitute authorized but
unissued shares and may then be issued by the Corporation as set forth herein.
A description of the different classes and series (if any) of the
Corporation's capital stock and a statement of the designations, and the
relative rights, preferences and limitations of the shares of each class of and
series (if any) of capital stock are as follows:
A. Common Stock. Except as provided in this Article V (or in any resolution
or resolutions adopted by the Board of Directors pursuant hereto), the exclusive
voting power shall be vested in the Common Stock, the holders thereof being
entitled to one vote for each share of such Common Stock standing in the
holder's name on the books of the Corporation. Subject to any rights and
preferences of any class of stock having preference over the Common Stock,
holders of Common Stock shall be entitled to such dividends as may be declared
by the Board of Directors out of funds lawfully available therefor. Upon any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Common Stock shall be entitled to
receive pro rata the remaining assets of the Corporation after the payment or
provision for payment of the Corporation's debts and liabilities and after the
holders of any class of stock having preference over the Common Stock have been
paid in full any sums to which they may be entitled.
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Miami Computer Supply, Inc.
Articles of Amendment
Page 4
B. Preferred Stock. The Board of Directors is hereby expressly authorized
to provide, by resolution or resolutions, out of the unissued shares of
Preferred Stock, for series of Preferred Stock. Before any shares of any such
series are issued, the Board of Directors shall fix, and hereby is expressly
empowered to fix, by resolution or resolutions, the following provisions of the
shares thereof:
(a) The designation of such series, the number of shares to constitute
such series and the stated value thereof;
(b) Whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms of such
voting rights, which may be general or limited;
(c) The dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and, if so, from what dates, the conditions and
dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any shares of stock
of any other class or any other series of this class;
(d) Whether the shares of such series shall be subject to redemption
by the Corporation, and, if so, the times, prices and other conditions of such
redemption;
(e) The amount or amounts payable upon shares of such series upon, and
the rights of the holders of such series in, the voluntary or involuntary
liquidation, dissolution or winding up, or upon any distribution of the assets,
of the Corporation;
(f) Whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and manner
in which any such retirement or sinking fund shall be applied to the purchase or
redemption of the shares of such series for retirement or other corporate
purposes and the terms and provisions relative to the operation thereof;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or any other series of this
class or any other securities, and, if so, the price or prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) The price or other consideration for which the shares of such
series shall be issued;
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Miami Computer Supply, Inc.
Articles of Amendment
Page 5
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of preferred stock and
whether such shares may be reissued as shares of the same or any other series of
preferred stock;
(j) The limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of dividends or the
making of other distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, the Common Stock or shares of stock of any
other class or any other series of this class;
(k) The conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of this class
or of any other class; and
(l) Any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations and
restrictions thereof.
The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, shall be identical, except that
there may be variations in respect of: the dividend or distribution rate; the
dates from which dividends thereon shall accrue and/or be cumulative; the dates
of the payment of dividends; redemption rights and price; liquidation price;
sinking fund requirements; conversion rights; and restrictions on the issuance
of shares of the same series or of any other class or series.
Prior to the issuance of any shares of a series of capital stock
established by resolution adopted by the Board of Directors, if such issuance is
the first issuance of shares of such series since the resolution was adopted,
the Corporation shall file with the Secretary for record articles of amendment
as required by the OGCL. Upon the filing of such articles of amendment with the
Secretary, the resolution establishing and designating the series and fixing and
determining the preferences, limitations and relative rights thereof shall
become an amendment of these Articles of Amendment.
ARTICLE VI
NO PREEMPTIVE RIGHTS
No Preemptive Rights. No holder of the capital stock of the Corporation
shall be entitled as such, as a matter of right or otherwise, to subscribe for
or purchase any part of any new or additional issue of equity or debt of any
class or series whatsoever, of the Corporation, or of securities convertible
into equity or debt of any class whatsoever, whether now or hereafter
authorized, or whether issued for cash or other consideration or by way of a
dividend.
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Miami Computer Supply, Inc.
Articles of Amendment
Page 6
ARTICLE VII
BOARD OF DIRECTORS
Directors. The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors. The current number of directors
of the Corporation is five (5). The names of the current members of the Board of
Directors of the Corporation are: Robert G. Hecht, Anthony W. Liberati, Harry F.
Radcliffe, Albert L. Schwarz and Thomas C. Winstel. The business address of each
member of the Board of Directors of the Corporation is 3884 Indian Ripple Road,
Dayton, Ohio 45440.
Except as otherwise fixed pursuant to the provisions of Article V hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors, the number of directors shall be determined by resolution
of the majority of the entire Board of Directors as provided in the
Corporation's Regulations, as may be amended from time to time, provided,
however, that the number of directors shall not be less than three nor greater
than twenty-one. Directors shall be elected by a plurality of the votes cast
by the holders of shares entitled to vote in the election of directors at a
meeting of stockholders at which a quorum is present. No holder of the capital
stock of the Corporation shall be permitted to cumulate his votes in the
election of directors.
A. Classification and Term. The Board of Directors, other than those
directors who may be elected by the holders of any class or series of stock
having preference over the Common Stock as to dividends or upon liquidation,
may, by resolution of the majority of the Whole Board of Directors and a
majority of the Continuing Directors then in office (as defined by Article X) be
divided into two or three classes as nearly equal in number as possible, each
class having not less than three directors, with one class to be elected
annually, as set forth in the Regulations of the Corporation. The terms of all
of the current directors shall expire at the annual meeting of stockholders to
be held in 1997 and, unless the Board is divided into classes as permitted
hereby, all Directors shall be elected annually.
B. Vacancies. Except as otherwise fixed pursuant to the provisions of
Article V hereof relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect directors, any vacancy occurring in the Board of Directors,
whether due to an increase in the number of directors or otherwise, shall be
filled by a majority vote of the Whole Board of Directors and a majority of the
Continuing Directors then in office (as defined by Article X) though less than a
quorum of the Board of Directors, or by a sole remaining director, and any
director so chosen shall be elected until the expiration of such unexpired term
and until such director's successor shall have been elected and qualified.
Whenever the holders of any class or series of shares or group of classes or
series of shares are entitled to elect one or
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Miami Computer Supply, Inc.
Articles of Amendment
Page 7
more directors by the provisions of these Articles of Amendment, any vacancies
in such directorships and any newly created directorships of such class or
series to be filled by reason of increase in the number of such directors shall
be filled by the affirmative vote of a majority vote of the Whole Board of
Directors and a majority of the Continuing Directors then in office (as defined
by Article X), though less than a quorum of the Board of Directors, or by a sole
remaining director, and any director so chosen shall be elected until the
expiration of such unexpired term and until such director's successor shall have
been elected and qualified. When the number of directors is changed, the Board
of Directors shall determine the class or classes to which the increased or
decreased number of directors shall be apportioned; provided that no decrease in
the number of directors shall shorten the term of any incumbent director.
C. Removal. Subject to the rights of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation to elect
directors, any director (including persons elected by directors to fill
vacancies in the Board of Directors) may be removed from office (i) by the Board
of Directors, if by order of court he has been found to be of unsound mind, or
if he is adjudicated bankrupt, or if, within sixty (60) days from the date of
his election he does not qualify as a director by accepting in writing his
election or by acting at a meeting of directors, or (ii) with or without cause
by an affirmative vote of not less than two-thirds of the votes eligible to be
cast by stockholders at a duly constituted meeting of stockholders called
expressly for such purpose. Whenever the holders of any class or series of
capital stock of the Corporation are entitled to elect one or more directors by
the provisions of these Articles of Amendment or any amendment or supplement
thereto, only the holders of shares of that class or series of capital stock
shall be entitled to vote for or against the removal of any director elected by
the holders of the shares of that class or series. At least thirty (30) days
prior to such meeting of stockholders, written notice shall be sent to the
director whose removal will be considered at the meeting.
D. Nominations of Directors. Nominations of candidates for election as
directors of the Corporation at any annual meeting of stockholders may be made
(i) by, or at the direction of, a majority of the Board of Directors, or (ii) by
any stockholder entitled to vote at such annual meeting. Only persons nominated
in accordance with the procedures set forth in this Article VII.D. shall be
eligible for election as directors at an annual meeting. Ballots bearing the
names of all the persons who have been nominated for election as directors at an
annual meeting in accordance with the procedures set forth in this Article
VII.D. shall be provided for use at the annual meeting.
Subject to the rights of the holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation,
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation as set forth in this Article VII.D. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
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Miami Computer Supply, Inc.
Articles of Amendment
Page 8
principal office of the Corporation not less than (i) with respect to an
election to be held at any annual meeting of stockholders of the Corporation,
(a) for the first such annual meeting after the filing of these Articles of
Amendment, the close of business on the tenth day following the date on which
notice of such meeting is first given to stockholders, and (b) thereafter, sixty
(60) days prior to the anniversary date of the mailing of proxy materials by the
Corporation in connection with the immediately preceding annual meeting of
stockholders of the Corporation; and (ii) with respect to a special meeting of
stockholders for the election of directors, the close of business on the tenth
day following the date on which notice of such meeting is first given to
stockholders. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director and as to the stockholder giving the notice (i) the name, age, business
address and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of Corporation
stock which are beneficially owned by such person on the date of such
stockholder notice, and (iv) any other information relating to such person that
is required to be disclosed in solicitations of proxies with respect to nominees
for election as directors pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including, but not
limited to, information required to be disclosed by Items 4, 5, 6 and 7 of
Schedule 14A (or any successors of such items); and (b) as to the stockholder
giving the notice (i) the name and address, as they appear on the Corporation's
books, of such stockholder and any other stockholders known by such stockholder
to be supporting such nominees and (ii) the class and number of shares of
Corporation stock which are beneficially owned by such stockholder on the date
of such stockholder notice and, to the extent known, by any other stockholders
known by such stockholder to be supporting such nominees on the date of such
stockholder notice. At the request of the Board of Directors, any person
nominated by, or at the direction of, the Board for election as a director at an
annual or special meeting of stockholders shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee.
The Board of Directors may reject any nomination by a stockholder not
timely made in accordance with the requirements of this Article VII.D. If the
Board of Directors, or a designated committee thereof, determines that the
information provided in a stockholder's notice does not satisfy the
informational requirements of this Article VII.D. in any material respect, the
Secretary of the Corporation shall promptly notify such stockholder of the
deficiency in the notice. The stockholder shall have an opportunity to cure the
deficiency by providing additional information to the Secretary within such
period of time, not to exceed five (5) days from the date such deficiency notice
is given to the stockholder, as the Board of Directors or such committee thereof
shall reasonably determine. If the deficiency is not cured within such period,
or if the Board of Directors or such committee thereof reasonably determines
that the additional information provided by the stockholder, together with
information previously provided, does not satisfy the requirements of this
Article VII.D. in any material respect, then the Board of Directors may reject
such stockholder's
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Miami Computer Supply, Inc.
Articles of Amendment
Page 9
nomination. The Secretary of the Corporation shall notify a stockholder in
writing whether his nomination has been made in accordance with the time and
informational requirements of this Article VII.D. Notwithstanding the procedures
set forth in this paragraph, if neither the Board of Directors nor such
committee thereof makes a determination as to the validity of any nominations by
a stockholder, the presiding officer of the annual meeting shall determine and
declare at the annual meeting whether the nomination was made in accordance with
the terms of this Article VII.D. If the presiding officer determines that a
nomination was made in accordance with the terms of this Article VII.D., he
shall so declare at the annual meeting and ballots shall be provided for use at
the meeting with respect to such nominee. If the presiding officer determines
that a nomination was not made in accordance with the terms of this Article
VII.D., he shall so declare at the annual meeting and the defective nomination
shall be disregarded.
Notwithstanding the foregoing, and except as otherwise required by law or
by further articles of amendment of these Articles of Amendment, whenever the
holders of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the provisions of this Article VII.D. shall not apply with respect to the
director or directors elected by such holders of Preferred Stock.
E. Discharge of Duties. In discharging the duties of their respective
positions, the Board of Directors, committees of the Board and individual
directors shall, in considering the best interests of the Corporation, consider
the effects of any action upon the Corporation's stockholders, employees,
suppliers, creditors, customers, the economy of the State of Ohio and of the
United States of America, the communities in which offices or other
establishments of the Corporation or any subsidiary are located, the long-term
as well the short-term interests of the Corporation and its stockholders,
including the possibility that these interests may be best served by the
continued independence of the Corporation, and all other pertinent factors.
ARTICLE VIII
INDEMNIFICATION, ETC. OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS
A. Limitation of Liability. No director shall be personally liable to the
Corporation or its stockholders for monetary damages for any act or omission by
such director as a director; provided that a director's liability shall not be
limited or eliminated to the extent that it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the Corporation, or was undertaken with reckless disregard for the best
interests of the Corporation. No amendment to or repeal of this Article VIII.A.
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation
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Miami Computer Supply, Inc.
Articles of Amendment
Page 10
for or with respect to any acts or omissions of such director occurring prior to
such amendment.
B. Indemnification. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, by reason of the fact that such person is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee, member, manager or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, partnership, joint
venture, trust or other enterprise or employee benefit plan, against liability
and expenses (including court costs and attorney's fees), judgments, fines,
excise taxes and amounts paid in satisfaction, settlement or compromise actually
and reasonably incurred by such person in connection with such action, suit or
proceeding to the full extent authorized by Section 1701.13 of the OGCL or any
successor provision thereto.
C. Advancement of Expenses. Reasonable expenses incurred by a director,
officer, employee or agent of the Corporation in defending an action, suit or
proceeding described in Article VIII.B. shall be paid by the Corporation as they
are incurred, in advance of the final disposition of such action, suit or
proceeding, as authorized by the Board of Directors only upon receipt of written
affirmation by or on behalf of such person in which he agrees to do both of the
following: (i) repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with the deliberate intent to cause
injury to the Corporation or undertaken with reckless disregard for the best
interests of the Corporation, and (ii) reasonably cooperate with the Corporation
concerning the action, suit or proceeding.
D. Other Rights and Remedies. The indemnification provided by this Article
VIII shall not be deemed to exclude any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Corporation's Articles of Amendment, any insurance or other agreement, trust
fund, letter of credit, surety bond, vote of stockholders or disinterested
directors or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, member, manager or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person; provided that no indemnification shall be made to or on behalf
of an individual in respect of any of the following: (i) any claim, issue, or
matter as to which such person is adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless, and only to
the extent that, a court of competent jurisdiction determines that, despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the court
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shall deem proper; or (ii) any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of the OGCL or any
successor thereto.
E. Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee, or agent of the Corporation, or was
serving at the request of the Corporation as a director, officer, employee,
member, manager or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, partnership, joint venture, trust or
another enterprise or employee benefit plan, against any liability asserted
against him or incurred by him in any such capacity, or arising out of his
status, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article or the OGCL.
F. Modification. The duties of the Corporation to indemnify and to advance
expenses to a director, officer, employee or agent provided in this Article VIII
shall be in the nature of a contract between the Corporation and each such
director, officer, employee or agent and no amendment or repeal of any provision
of this Article VIII shall alter, to the detriment of such director, officer,
employee or agent, the right of such person to the advance of expenses or
indemnification related to a claim based on an act or failure to act which took
place prior to such amendment or repeal.
ARTICLE IX
MEETINGS OF STOCKHOLDERS AND STOCKHOLDER PROPOSALS
A. Special Meetings of Stockholders. Except as otherwise required by law
and subject to the rights of the holders of any class or series of Preferred
Stock, special meetings of the stockholders of the Corporation may be called
only by (i) the Board of Directors pursuant to a resolution approved by the
affirmative vote of a majority of the Whole Board of Directors and a majority of
the Continuing Directors then in office (as defined by Article X), (ii) the
Chairman of the Board, (iii) the President, or (iv) the holders of not less than
50 percent of all votes outstanding and entitled to be cast on any issue
proposed to be considered at such special meeting. A request for a special
meeting of stockholders by stockholders of the Corporation shall state the
purpose of the meeting and the matters proposed to be acted on. The Secretary of
the Corporation shall inform the stockholders who make the request for the
special meeting of the reasonably estimated cost of preparing and mailing a
notice of the meeting and on payment of such costs to the Corporation, the
Secretary shall notify each stockholder entitled to notice of the special
meeting.
B. Action Without a Meeting. Any action permitted to be taken by the
stockholders at a meeting may be taken without a meeting if consent in writing
setting forth the action
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so taken shall be signed by all of the stockholders who would be entitled to
vote at a meeting for such purpose and a written waiver of any right to dissent
signed by each stockholder entitled to notice of the meeting but not entitled to
vote at it, and both are filed with the Secretary of the Corporation as part of
the corporate records.
C. Stockholder Proposals. At an annual meeting of stockholders, only such
business shall be conducted, and only such proposals shall be acted upon, as
shall have been brought before the annual meeting by, or at the direction of,
(a) the Board of Directors or (b) any stockholder of the Corporation who
complies with all the requirements set forth in this Article IX.C.
Proposals, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation as set forth in this Article IX.C. For stockholder proposals
to be included in the Corporation's proxy materials, the stockholder must comply
with all the timing and informational requirements of Rule 14a-8 of the Exchange
Act (or any successor regulation). With respect to stockholder proposals to be
considered at the annual meeting of stockholders but not included in the
Corporation's proxy materials, the stockholder's notice shall be delivered to,
or mailed and received at, the principal office of the Corporation (a) for the
first such annual meeting after the filing of these Articles of Amendment, at
the close of business on the tenth day following the date on which notice of
such meeting is first given to stockholders, and (b) thereafter not less than
sixty (60) days prior to the anniversary date of the mailing of proxy materials
by the Corporation in connection with the immediately preceding annual meeting
of stockholders of the Corporation. Such stockholder's notice shall set forth as
to each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the proposal desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting,
(b) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business and, to the extent known, any other
stockholders known by such stockholder to be supporting such proposal, (c) the
class and number of shares of the Corporation stock which are beneficially owned
by the stockholder on the date of such stockholder notice and, to the extent
known, by any other stockholders known by such stockholder to be supporting such
proposal on the date of such stockholder notice, and (d) any financial interest
of the stockholder in such proposal (other than interests which all stockholders
would have).
The Board of Directors may reject any stockholder proposal not timely made
in accordance with the terms of this Article IX.C. If the Board of Directors, or
a designated committee thereof, determines that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
Article IX.C. in any material respect, the Secretary of the Corporation shall
promptly notify such stockholder of the deficiency in the notice. The
stockholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within such period of time, not to
exceed five (5)
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days from the date such deficiency notice is given to the stockholder, as the
Board of Directors or such committee thereof shall reasonably determine. If the
deficiency is not cured within such period, or if the Board of Directors or such
committee thereof determines that the additional information provided by the
stockholder, together with information previously provided, does not satisfy the
requirements of this Article IX.C. in any material respect, then the Board of
Directors may reject such stockholder's proposal. The Secretary of the
Corporation shall notify a stockholder in writing whether his proposal has been
made in accordance with the time and informational requirements of this Article
IX.C. Notwithstanding the procedures set forth in this paragraph, if neither the
Board of Directors nor such committee thereof makes a determination as to the
validity of any stockholder proposal, the presiding officer of the annual
meeting shall determine and declare at the annual meeting whether the
stockholder proposal was made in accordance with the terms of this Article IX.C.
If the presiding officer determines that a stockholder proposal was made in
accordance with the terms of this Article IX.C., he shall so declare at the
annual meeting and ballots shall be provided for use at the meeting with respect
to any such proposal. If the presiding officer determines that a stockholder
proposal was not made in accordance with the terms of this Article IX.C., he
shall so declare at the annual meeting and any such proposal shall not be acted
upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
ARTICLE X
CERTAIN BUSINESS COMBINATIONS AND ACQUISITIONS OF STOCK
A. Definitions and Related Matters.
(a) Affiliate. An "Affiliate" of, or a Person "affiliated with," a
specified Person means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.
(b) Associate. The term "Associate" when used to indicate a
relationship with any Person means:
(i) Any corporation or organization (other than the Corporation
or a Subsidiary of the Corporation) of which such Person is an officer
or partner or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities;
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(ii) Any trust or other estate in which such Person has a 10
percent or greater beneficial interest or as to which such Person
serves as trustee or in a similar fiduciary capacity;
(iii) Any relative or spouse of such Person, or any relative of
such spouse who has the same home as such Person; or
(iv) Any investment company registered under the Investment
Company Act of 1940 for which such Person or any Affiliate or
Associate of such Person serves as investment advisor.
(c) Beneficial Owner. A Person shall be considered the "Beneficial
Owner" of any shares of stock (whether or not owned of record):
(i) With respect to which such Person or any Affiliate or
Associate of such Person directly or indirectly has or shares
(1) voting power, including the power to vote or to direct the voting
of such shares of stock and/or (2) investment power, including the
power to dispose of or to direct the disposition of such shares of
stock;
(ii) Which such Person or any Affiliate or Associate of such
Person has (1) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
and/or (2) the right to vote pursuant to any agreement, arrangement or
understanding (whether such right is exercisable immediately or only
after the passage of time); or
(iii) Which are Beneficially Owned within the meaning of (i) or
(ii) of this Article X.A.(c) by any other Person with which such
first-mentioned Person or any of its Affiliates or Associates has any
agreement, arrangement or understanding, written or oral, with respect
to acquiring, holding, voting or disposing of any shares of stock of
the Corporation or any Subsidiary of the Corporation or acquiring,
holding or disposing of all or substantially all, or any Substantial
Part, of the assets or businesses of the Corporation or a Subsidiary
of the Corporation.
For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage specified in this Article X of the outstanding Voting
Shares, such shares shall be deemed to include any Voting Shares which may be
issuable pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights,
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warrants, options or otherwise and which are deemed to be Beneficially Owned by
such Person pursuant to the foregoing provisions of this Article X.A.(c).
(d) Business Combination. A "Business Combination" means:
(i) The sale, exchange, lease, transfer or other disposition to
or with a Related Person or any Affiliate or Associate of such Related
Person by the Corporation or any of its Subsidiaries (in a single
transaction or a series of related transactions) of all or
substantially all, or any Substantial Part, of its or their assets or
businesses (including, without limitation, any securities issued by a
Subsidiary);
(ii) The purchase, exchange, lease or other acquisition by the
Corporation or any of its Subsidiaries (in a single transaction or a
series of related transactions) of all or substantially all, or any
Substantial Part, of the assets or business of a Related Person or any
Affiliate or Associate of such Related Person;
(iii) Any merger or consolidation of the Corporation or any
Subsidiary thereof into or with a Related Person or any Affiliate or
Associate of such Related Person or into or with another Person which,
after such merger or consolidation, would be an Affiliate or an
Associate of a Related Person, in each case irrespective of which
Person is the surviving entity in such merger or consolidation;
(iv) Any reclassification of securities, recapitalization or
other transaction (other than a redemption in accordance with the
terms of the security redeemed) which has the effect, directly or
indirectly, of increasing the proportionate amount of Voting Shares of
the Corporation or any Subsidiary thereof which are Beneficially Owned
by a Related Person, or any partial or complete liquidation, spinoff
or splitup of the Corporation or any Subsidiary thereof; provided,
however, that this Article X.A.(d)(iv) shall not relate to any
transaction of the types specified herein that have been approved by
the affirmative vote of at least two-thirds of the Whole Board of
Directors and a majority of the Continuing Directors; or
(v) The acquisition upon the issuance thereof of Beneficial
Ownership by a Related Person of Voting Shares or securities
convertible into Voting Shares or any voting securities or securities
convertible into voting securities of any Subsidiary of the
Corporation, or the acquisition upon the issuance thereof of
Beneficial Ownership by a Related Person of any rights,
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warrants or options to acquire any of the foregoing or any combination
of the foregoing Voting Shares or voting securities of a Subsidiary.
As used in this definition, a "series of related transactions" shall be
deemed to include not only a series of transactions with the same Related Person
but also a series of separate transactions with a Related Person or any
Affiliate or Associate of such Related Person.
Anything in this definition to the contrary notwithstanding, this
definition shall not be deemed to include any transaction of the type set forth
in Article X.A.(d)(i) through X.A.(d)(iii) between or among any two or more
Subsidiaries of the Corporation or the Corporation and one or more Subsidiaries
of the Corporation if such transaction has been approved by the affirmative vote
of at least two-thirds of the Whole Board of Directors and a majority of the
Continuing Directors on or prior to the Date of Determination.
(e) Continuing Director. A "Continuing Director" shall mean:
(i) Each of the present directors of the Corporation as set forth
in Article VII, whether or not such person is a Related Person or an
Affiliate or Associate of a Related Person, except that such
designation shall in no way be deemed to affect or change or diminish
the fiduciary duties of such person to the Corporation;
(ii) An individual who is unaffiliated with a Related Person and
who was a member of the Board of Directors prior to the time that a
Related Person acquired 10% or more of the Voting Shares; or,
(iii) An individual who is unaffiliated with a Related Person and
who is designated before his or her initial election as a Continuing
Director by a majority of the then Continuing Directors.
(f) Date of Determination. The term "Date of Determination" means:
(i) The date on which a binding agreement (except for the
fulfillment of conditions precedent, including, without limitation,
votes of stockholders to approve such transaction) is entered into by
the Corporation, as authorized by its Board of Directors, and another
Person providing for any Business Combination; or,
(ii) If such an agreement as referred to in Article X.A.(f)(i)
above is amended so as to make it less favorable to the Corporation
and its stockholders, the date on which such amendment is approved by
the Board of Directors of the Corporation; or,
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(iii) In cases where neither Article X.A.(f)(i) nor (ii) shall be
applicable, the record date for the determination of stockholders of
the Corporation entitled to notice of and to vote upon the transaction
in question.
A majority of the Continuing Directors shall have the power and duty to
determine the Date of Determination as to any transaction under this Article X.
Any such determination shall be conclusive and binding for all purposes of this
Article X.
(g) Fair Market Value. The term "Fair Market Value" shall mean:
(i) In the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock Exchange
- Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange or the American Stock Exchange,
or, if such stock is not listed on such exchanges, on the principal
United States securities exchange registered under the Exchange Act on
which such shares are listed, or, if such shares are not listed on any
such exchange, the highest closing price with respect to a share of
such stock during the 30-day period preceding the date in question on
the National Market System of the National Association of Securities
Dealers Automated Quotations ("NASDAQ") System, or, if not listed on
the National Market System, the highest mean of the closing bid and
asked quotations on the NASDAQ System during such 30-day period or any
system then in use, or, if no such quotations are available, the fair
market value on the date in question of a share as determined by a
majority of the Continuing Directors in good faith; and
(ii) In the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by
a majority of the Continuing Directors in good faith.
(h) Independent Majority of Stockholders. The term "Independent
Majority of Stockholders" shall mean the holders of a majority of the
outstanding Voting Shares that are not Beneficially Owned or controlled,
directly or indirectly, by a Related Person.
(i) Offer. The term "Offer" shall mean every offer to buy or otherwise
acquire, solicitation of an offer to sell, tender offer for, or request or
invitation for tenders of, a security or interest in a security for value;
provided that the term "Offer" shall not include: (a) inquiries directed solely
to the management of the Corporation and not intended to be communicated to
stockholders which are designed to elicit an indication of management's
receptivity to the basic structure of a potential acquisition with respect to
the amount of cash and/or securities, manner of acquisition and formula for
determining price,
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or (b) non-binding expressions of understanding or letters of intent with the
management of the Corporation regarding the basic structure of a potential
acquisition with respect to the amount of cash and/or securities, manner of
acquisition and formula for determining price.
(j) Person. The term "Person" shall mean any person, partnership,
corporation, or group or other entity (other than the Corporation, any
Subsidiary of the Corporation or a trustee holding stock for the benefit of
employees of the Corporation or its Subsidiaries, or any one of them, pursuant
to one or more employee benefit plans or arrangements). When two or more Persons
act as a partnership, limited partnership, syndicate, association or other group
for the purpose of acquiring, holding or disposing of shares of stock, such
partnership, syndicate, association or group shall be deemed a "Person."
(k) Related Person. The term "Related Person" shall mean any Person
who or which is (a) the Beneficial Owner, as of the Date of Determination, or
immediately prior to the consummation of a Business Combination, of 10% or more
of the Voting Shares; or (b) an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the announcement of a Business
Combination was the Beneficial Owner, directly or indirectly, of 10% or more of
the then outstanding Voting Shares; or (c) an assignee of or has otherwise
succeeded to any Voting Shares which were at any time within the two-year period
immediately prior to the announcement of a Business Combination Beneficially
Owned by any Related Person, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933, but shall
not include Pittsburgh Investment Group LLC or any successor thereto.
(l) Substantial Part. The term "Substantial Part" as used with
reference to the assets of the Corporation, of any Subsidiary or of any Related
Person means assets having a value of more than 10% of the total consolidated
assets of the Corporation and its Subsidiaries as of the end of the
Corporation's most recent fiscal year ending prior to the time the determination
is being made.
(m) Subsidiary. The term "Subsidiary" shall mean any corporation or
other entity of which the Person in question owns not less than 50 percent of
any class of equity securities, directly or indirectly.
(n) Voting Shares. The term "Voting Shares" shall mean shares of the
Corporation entitled to vote generally in the election of directors.
(o) Whole Board of Directors. The term "Whole Board of Directors"
shall mean the total number of directors which the Corporation would have if
there were no vacancies.
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(p) Certain Determinations with Respect to Article X.
(i) A majority of the Continuing Directors shall have the power
to determine for the purposes of this Article X, on the basis of
information known to them: (1) the number of Voting Shares of which
any Person is the Beneficial Owner, (2) whether a Person is an
Affiliate or Associate of another, (3) whether a Person has an
agreement, arrangement or understanding with another as to the matters
referred to in the definition of "Beneficial Owner" as hereinabove
defined, (4) whether the assets subject to any Business Combination
constitute a "Substantial Part" as hereinabove defined, (5) whether
two or more transactions constitute a "series of related transactions"
as hereinabove defined, (6) any matters referred to in Article
X.A.(p)(ii) below, and (7) such other matters with respect to which a
determination is required under this Article X.
(ii) A Related Person shall be deemed to have acquired a share of
the Corporation at the time when such Related Person became a
Beneficial Owner thereof. With respect to shares owned by Affiliates,
Associates or other Persons whose ownership is attributable to a
Related Person under the foregoing definition of Beneficial Owner, if
the price paid by such Related Person for such shares is not
determinable, the price so paid shall be deemed to be the higher of
(1) the price paid upon acquisition thereof by the Affiliate,
Associate or other Person or (2) the market price of the shares in
question (as determined by a majority of the Continuing Directors) at
the time when the Related Person became the Beneficial Owner thereof.
(q) Fiduciary Obligations. Nothing contained in this Article X shall
be construed to relieve any Related Person from any fiduciary obligation imposed
by law.
B. Approval of Business Combination.
(a) Except as provided in Article X.B.(b), neither the Corporation nor
any of its Subsidiaries shall become party to any Business Combination without
the prior affirmative vote at a meeting of the Corporation's stockholders of:
(i) The holders of not less than 80 percent of the outstanding
Voting Shares, voting separately as a class, and
(ii) An Independent Majority of Stockholders.
Such favorable votes shall be in addition to any stockholder vote which
would be required without reference to this Article X.B.(a) and shall be
required notwithstanding the
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fact that no vote may be required, or that some lesser percentage may be
specified by law or otherwise.
(b) The provisions of Article X.B.(a) shall not apply to a particular
Business Combination, and such Business Combination shall require only such
stockholder vote (if any) as would be required without reference to this Article
X.B., if all of the conditions set forth in subparagraphs (i) through (vii)
below are satisfied:
(i) The ratio of (1) the aggregate amount of the cash and the
Fair Market Value of the other consideration to be received per share
of Common Stock (as defined in Article V) of the Corporation in such
Business Combination by holders of Common Stock other than the Related
Person involved in such Business Combination, to (2) the market price
per share of the Common Stock immediately prior to the announcement of
the proposed Business Combination, is at least as great as the ratio
of (x) the highest per share price (including brokerage commissions,
transfer taxes and soliciting dealers' fees) which such Related Person
has theretofore paid in acquiring any Common Stock prior to such
Business Combination, to (y) the market price per share of Common
Stock immediately prior to the initial acquisition by such Related
Person of any shares of Common Stock; and
(ii) The aggregate amount of the cash and the Fair Market Value
of other consideration to be received per share of Common Stock in
such Business Combination by holders of Common Stock, other than the
Related Person involved in such Business Combination, is not less than
the highest per share price (including brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by such Related Person in
acquiring any of its holdings of Common Stock; and
(iii) If applicable, the ratio of (1) the aggregate amount of the
cash and the Fair Market Value of other consideration to be received
per share of Preferred Stock (as defined in Article V) of the
Corporation in such Business Combination by holders of Preferred Stock
other than the Related Person involved in such Business Combination,
to (2) the market price per share of the Preferred Stock immediately
prior to the announcement of the proposed Business Combination, is at
least as great as the ratio of (x) the highest per share price
(including brokerage commissions, transfer taxes and soliciting
dealers' fees) which such Related Person has theretofore paid in
acquiring any Preferred Stock prior to such Business Combination to
(y) the market price per share of Preferred Stock immediately prior to
the initial acquisition by such Related Person of any shares of
Preferred Stock; and
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(iv) If applicable, the aggregate amount of the cash and the Fair
Market Value of other consideration to be received per share of
Preferred Stock in such Business Combination by holders of Preferred
Stock, other than the Related Person involved in such Business
Combination, is not less than the highest per share price (including
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by such Related Person in acquiring any of its holdings of
Preferred Stock; and
(v) The consideration (if any) to be received in such Business
Combination by holders of stock other than the Related Person (whether
Common Stock or Preferred Stock) involved shall, except to the extent
that a stockholder agrees otherwise as to all or part of the shares
which he owns, be in the same form and of the same kind as the
consideration paid by the Related Person in acquiring Common Stock
already owned by it; and
(vi) After such Related Person became a Related Person and prior
to the consummation of such Business Combination:
(1) such Related Person shall vote his shares in such a
manner as to cause, to the extent necessary and within his power
as a stockholder, the Board of Directors of the Corporation to
include at all times representation by Continuing Directors
proportionate to the ratio that the number of Voting Shares of
the Corporation from time to time owned by stockholders who are
not Related Persons bears to all Voting Shares of the Corporation
outstanding at the time in question (with a Continuing Director
to occupy any resulting fractional position among the directors);
(2) such Related Person shall not have acquired from the
Corporation, directly or indirectly, any shares of the
Corporation (except (x) upon conversion of convertible securities
acquired by it prior to becoming a Related Person or (y) as a
result of a pro rata stock dividend, stock split or division of
shares or (z) in a transaction which satisfied all applicable
requirements of this Article X);
(3) such Related Person shall not have acquired any
additional Voting Shares of the Corporation or securities
convertible into or exchangeable for Voting Shares except as a
part of the transaction which resulted in such Related Person
becoming a Related Person;
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(4) such Related Person shall not have (x) received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or
other financial assistance or tax credits provided by the
Corporation or any Subsidiary, or (y) made any major change in
the Corporation's business or equity capital structure or entered
into any contract, arrangement or understanding with the
Corporation except any such change, contract, arrangement or
understanding as may have been approved by the favorable vote of
not less than a majority of the Whole Board of Directors and a
majority of the Continuing Directors of the Corporation; and
(5) except as approved by a majority of the Whole Board of
Directors and a majority of the Continuing Directors, there shall
have been: (x) no failure to declare and pay at the regular date
therefor any dividends (whether or not cumulative) on any
outstanding Preferred Stock; (y) no reduction in the annual rate
of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock); and (z) an increase
in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of
the stock; and
(vii) A proxy statement complying with the requirements under the
Exchange Act shall have been mailed to all holders of Voting Shares
for the purpose of soliciting stockholder approval of such Business
Combination. Such proxy statement is not required to be filed with or
approved by the Securities and Exchange Commission unless otherwise
required by law. Such proxy statement shall contain at the front
thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may have furnished in writing
and, if deemed advisable by a majority of the Continuing Directors, an
opinion of a reputable investment banking firm as to the fairness (or
lack of fairness) of the terms of such Business Combination from the
point of view of the holders of Voting Shares other than any Related
Person (such investment banking firm to be selected by a majority of
the Continuing Directors, to be furnished with all information it
reasonably requests, and to be paid a reasonable fee for its services
upon receipt by the Corporation of such opinion).
(c) For purposes of Article X.B.(b)(i) through X.B.(b)(iv) hereof, in
the event of a Business Combination upon consummation of which the Corporation
would be
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Miami Computer Supply, Inc.
Articles of Amendment
Page 23
the surviving corporation or company or would continue to exist (unless it is
provided, contemplated or intended that as part of such Business Combination or
within one year after consummation thereof a plan of liquidation or dissolution
of the Corporation will be effected), the term "other consideration to be
received" shall include (without limitation) Common Stock retained by the
stockholders of the Corporation other than Related Persons who are parties to
such Business Combination.
(d) The provisions of this Article X.B. shall not apply to (i) any
Business Combination approved by two-thirds of the Whole Board of Directors of
the Corporation at a time prior to the acquisition of 10 percent or more of the
outstanding Voting Shares of the Corporation by the Related Person, or (ii) any
Business Combination approved by two-thirds of the Whole Board of Directors and
a majority of the Continuing Directors after such acquisition.
C. Evaluation of Business Combinations, Etc. In connection with the
exercise of its judgment in determining what is in the best interest of the
Corporation and its stockholders when evaluating a Business Combination or a
proposal by another Person or Persons to make a Business Combination or a tender
or exchange offer, the Board of Directors of the Corporation shall, in addition
to considering the adequacy of the amount to be paid in connection with any such
transaction, consider all of the following factors and any other factors which
it deems relevant: (i) the social and economic effects of the transaction on the
Corporation and its Subsidiaries and their respective employees, customers,
creditors and other elements of the communities in which the Corporation and its
Subsidiaries operate or are located; (ii) the business and financial condition
and earnings prospects of the acquiring Person or Persons, including, but not
limited to, debt service and other existing or likely financial obligations of
the acquiring Person or Persons, and the possible effect of such conditions upon
the Corporation and its Subsidiaries and the elements of the communities in
which the Corporation and its Subsidiaries operate or are located; and (iii) the
competence, experience and integrity of the acquiring Person or Persons and its
or their management.
D. Voting Rights of Certain Control Shares. The Corporation shall be
governed by Section 1701.831 of the OGCL "Shareholder Review of Proposed Control
Share Acquisitions," or its successor, and hereby adopts such language and
provisions and incorporates the same herein by reference as though it were
written out herein in full.
E. Amendments, Etc. of this Article X. Notwithstanding any other provisions
of these Amended and Restated Articles of Incorporation or the Regulations of
the Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, these Amended and Restated Articles of Incorporation or the
Regulations of the Corporation), this Article X shall not be amended, altered,
changed, or repealed without the affirmative vote of (i) the holders of 80% or
more of the outstanding Voting Shares, voting
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Miami Computer Supply, Inc.
Articles of Amendment
Page 24
separately as a class, and (ii) an Independent Majority of Stockholders;
provided, however, that this Article X.E. shall not apply to, and such vote
shall not be required for, any such amendment, change or repeal recommended to
stockholders by the favorable vote of not less than two-thirds of the Whole
Board of Directors, including a majority of the Continuing Directors, and any
such amendment, change or repeal so recommended shall require only the vote, if
any, required under the applicable provisions of the Act, these Amended and
Restated Articles of Incorporation and the Regulations of the Corporation.
F. Election Under Chapter 1704 the OGCL. Pursuant to Section
1704.05(F)(1)(a), the Corporation has expressly elected not to be governed by
the provisions of Chapter 1704 of the OGCL.
ARTICLE XI
AMENDMENT OF ARTICLES OF INCORPORATION AND REGULATIONS
A. Articles of Incorporation. The Corporation reserves the right to amend,
alter, change or repeal any provision contained in these Articles of Amendment,
in the manner now or hereafter prescribed by law, and all rights conferred upon
stockholders herein are granted subject to this reservation. No amendment,
addition, alteration, change or repeal of these Articles of Amendment shall be
made unless it is first approved by the Board of Directors of the Corporation
pursuant to a resolution adopted and declared advisable by the affirmative vote
of a majority of the directors then in office, and thereafter is approved, at an
annual or special meeting, by the holders of two-thirds of the shares of the
Corporation entitled to vote generally in an election of directors, voting
together as a single class, unless any class or series of shares is entitled to
vote thereon as a class, in which event the proposed amendment shall be adopted
upon receiving the affirmative vote of the holders of a majority of the shares
within each class or series of outstanding shares entitled to vote thereon as a
class and of at least two-thirds of the total outstanding shares entitled to
vote thereon, provided that, notwithstanding anything contained in these
Articles of Amendment to the contrary, (i) the affirmative vote of the holders
of at least 75 percent of the shares of the Corporation entitled to vote
generally in an election of directors, voting together as a single class, unless
any class or series of shares is entitled to vote thereon as a class, in which
event the proposed amendment shall be adopted upon receiving the affirmative
vote of the holders of 75 percent of the shares within each class or series of
outstanding shares entitled to vote thereon as a class and of at least 75
percent of the total outstanding shares entitled to vote thereon, shall be
required to amend, adopt, alter, change or repeal any provision inconsistent
with Articles VI (relating to preemptive rights), VII (relating to the Board of
Directors), VIII (relating to indemnification), IX (relating to meetings of
stockholders), and this Article XI, and (ii) Article X shall be amended in the
manner specified in Article X.E.
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Articles of Amendment
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B. Code of Regulations. The stockholders may adopt, alter, amend or repeal
the Regulations of the Corporation pursuant to Section 1701.11 of the OGCL or
any successor thereto.
WE, THE UNDERSIGNED, being the duly authorized President and Secretary of
Miami Computer Supply, Inc. for the purpose of amending and restating the
Articles of Incorporation of the Corporation pursuant to the Ohio General
Corporation Law, do make these Articles of Amendment and Restatement of the
Articles of Incorporation of Miami Computer Supply, Inc., hereby acknowledging
and certifying, under the penalties of perjury, that this is the act and deed of
Miami Computer Supply, Inc. and that, to the best of our knowledge, information
and belief, the matters and the facts herein stated are true in all material
respects, and accordingly, we have hereunto set our hands this 24th day of
September, 1996.
MIAMI COMPUTER SUPPLY, INC.
WITNESSED: /s/ Thomas C. Winstel By: /s/ Albert L. Schwarz
----------------------- ------------------------
Thomas C. Winstel Albert L. Schwarz
Secretary President
AMENDED AND RESTATED
CODE OF REGULATIONS
OF
MIAMI COMPUTER SUPPLY CORPORATION
ARTICLE I
OFFICES
The following Amended and Restated Code of Regulations (the "Regulations")
of Miami Computer Supply Corporation, Dayton, Ohio, were duly adopted by the
stockholders of the Corporation as of September 18, 1996:
1.1 Principal Office and Statutory Agent. The principal office of Miami
Computer Supply Corporation (the "Corporation") shall be located in the State of
Ohio at such place as may be fixed from time to time by the Board of Directors
upon filing of such notices as may be required by law, and the statutory agent
shall have a business office identical with such principal office.
1.2 Other Offices. The Corporation may have other offices within or outside
the State of Ohio at such place or places as the Board of Directors may from
time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 Meeting Place. All meetings of the stockholders shall be held at the
principal office of the Corporation, or at such other place within or without
the State of Ohio as shall be determined from time to time by the Board of
Directors, and the place at which any such meeting shall be held shall be stated
in the notice of the meeting.
2.2 Annual Meeting Time. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held each year on the first Monday of
the fourth month following the close of each fiscal year of the Corporation at
the hour of 10:00 a.m., if not a legal holiday, and if a legal holiday, then on
the next succeeding day not a legal holiday, at the same hour, or at such other
date and time as may be determined by the Board of Directors and stated in the
notice of such meeting.
2.3 Organization. Each meeting of the stockholders shall be presided over
by the Chairman of the Board, or by the President, or if neither the Chairman,
nor the President is present, by a Vice President or such other officer as
designated by the Board of Directors. The Secretary, or in his or her absence a
temporary Secretary, shall act as secretary of each meeting of the stockholders.
In the absence of the Secretary and any temporary Secretary,
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Amended and Restated Code of Regulations
Page 2
the chairman of the meeting may appoint any person present to act as secretary
of the meeting. The chairman of any meeting of the stockholders, unless
prescribed by law or unless the Chairman of the Board has otherwise determined,
shall determine the order of the business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of discussions
as shall be deemed appropriate by him in his sole discretion.
2.4 Special Meetings. Special meetings of the stockholders for any purpose
may be called at any time in the manner provided in the Corporation's Amended
and Restated Articles of Incorporation, which are incorporated herein with the
same effect as if they were set forth herein.
2.5 Notice.
(a) Notice of the time and place of the annual meeting of stockholders
shall be given by delivering personally, leaving at his or her residence or
usual place of business or by mailing to the stockholder's address as it appears
on the records of the Corporation a written or printed notice of the same to
each stockholder of record stating the place, day and hour of the meeting, at
least seven (7) days and not more than sixty (60) days prior to the meeting, to
each stockholder of record entitled to vote at such meeting and to each other
stockholder entitled to notice of said meeting.
(b) At least seven (7) days and not more than sixty (60) days prior to
the meeting, a written or printed notice of each special meeting of
stockholders, stating the place, day and hour of such meeting, and the purpose
or purposes for which the meeting is called, shall be either delivered
personally, left at his or her residence or principal place of business or
mailed to each stockholder of record entitled to vote at such meeting at such
stockholder's address as it appears on the records of the Corporation and to
each other stockholder entitled to notice of said meeting.
(c) A person entitled to notice of any meeting of stockholders may
waive such notice if her or she: (i) before or after the meeting signs a waiver
of notice which is filed with the records of the stockholders' meeting, or
(ii) is present at the meeting in person or by proxy.
(d) A meeting of stockholders, either annual or special, convened on
the date for which it was called may be adjourned from time to time without
further notice to a date not more than one hundred and twenty (120) days after
the original record date. When any stockholders' meeting, either annual or
special, is adjourned and if a new record date is fixed for an adjourned meeting
of stockholders, notice of the adjourned meeting shall be given as in the case
of an original meeting. It shall not be necessary to give any written
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Miami Computer Supply Corporation
Amended and Restated Code of Regulations
Page 3
notice of the time and place of any meeting adjourned, unless a new record date
is fixed therefor, other than an announcement at the meeting at which such
adjournment is taken.
2.6 Voting List. A complete list of the stockholders entitled to vote at
any meeting of stockholders, or any adjournment thereof, shall be made by the
Secretary, arranged in alphabetical order, with the address of and number of
shares registered in the name of each, which list shall be produced at any
meeting of stockholders for the examination of any stockholder, upon the request
of any stockholder at any meeting of stockholders. The Stock Ledger shall be the
only evidence as to who are the stockholders entitled to examine the Stock
Ledger, the voting list required by these Amended and Restated Regulations or
the books of the Corporation, or to vote in person or by proxy at any meeting of
the stockholders.
2.7 Quorum; Voting. Except as otherwise required by law:
(a) A quorum for the transaction of business at any annual or special
meeting of stockholders shall consist of stockholders representing, either in
person or by proxy, a majority of the outstanding capital stock of the
Corporation entitled to vote on that matter at such meeting, except as otherwise
provided by statute, the Amended and Restated Articles of Incorporation (the
"Amended and Restated Articles") or these Amended and Restated Regulations; but
in the absence of such a quorum, the holders of a majority of the shares
represented at the meeting shall have the right successively to adjourn the
meeting to a specified date. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the original meeting.
The absence from any meeting of the number of shares required by law, the
Amended and Restated Articles of Incorporation or these Amended and Restated
Regulations for action upon one matter shall not prevent action at such meeting
upon any other matter or matters which may properly come before the meeting, if
the number of shares required in respect of such other matters shall be present.
(b) With respect to any other matter other than the election of
directors, the votes of a majority of all votes cast at any properly called
meeting or adjourned meeting of stockholders at which a quorum, as defined
above, is present, shall be sufficient to approve any matter which properly
comes before the meeting, unless the proposition or question is one upon which
by express provisions of law or of the Amended and Restated Articles of
Incorporation or these Amended and Restated Regulations, a different vote is
required, in which case with express provision shall govern and establish the
number of votes required to determine such proposition or questions.
(c) Directors are to be elected by a plurality of votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present. Stockholders shall not be permitted to cumulate their votes for the
election of directors. If, at any
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Miami Computer Supply Corporation
Amended and Restated Code of Regulations
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meeting of the stockholders, due to a vacancy or vacancies or otherwise,
directors of more than one class of the Board of Directors are to be elected,
each class of directors to be elected at the meeting shall be elected in a
separate election by a plurality vote.
2.8 Voting of Shares. Except as otherwise provided in these Amended and
Restated Regulations or to the extent that voting rights of the shares of any
class or classes are limited or denied by the Amended and Restated Articles of
Incorporation, each stockholder, on each matter submitted to a vote at a meeting
of stockholders, shall have one (1) vote for each share of stock registered in
his name on the books of the Corporation.
2.9 Closing of Transfer Books and Fixing Record Date. For the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders, or any adjournment thereof, or entitled to receive payment of any
distribution by the Corporation or a share dividend, or in order to make a
determination of stockholders for any other proper purpose, the Board of
Directors may provide that the stock transfer books shall be closed for a stated
period not to exceed sixty (60) days preceding such meeting. In lieu of closing
the stock transfer books, the Board of Directors may fix in advance a record
date for any such determination of stockholders, such date to be not more than
sixty (60) days preceding the date fixed for payment, the date of the meeting or
any other such date.
2.10 Proxies. A stockholder may vote either in person or by proxy executed
in writing by the stockholder, or his duly authorized attorney-in-fact. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
2.11 Voting of Shares in the Name of Two or More Persons. When ownership
stands in the name of two or more persons, in the absence of written directions
to the Secretary of the Corporation to the contrary, at any meeting of the
stockholders of the Corporation any one or more of such stockholders may cast,
in person or by proxy, all votes to which such ownership is entitled. In the
event an attempt is made to cast conflicting votes, in person or by proxy, by
the several persons in whose names shares of stock stand, the vote or votes to
which those persons are entitled shall be cast as directed by a majority of
those holding such stock and present in person or by proxy at such meeting. In
the event an attempt is made to cast conflicting votes by more than one person
and the number executing consents exceeds the number executing objections to
consents, the former may act for all, and likewise if the number executing
objections to consents shall exceeds the number executing consents, the greater
number may act for all and if only one person attends the meeting, or executes a
consent and no other of said persons executes an objection to such consent, then
that one person may act for all, and if an even number attend the meeting and a
majority of all the persons so attending do not agree on any particular issue or
if one or more execute consents and a like number execute objections to
consents, each person so
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Miami Computer Supply Corporation
Amended and Restated Code of Regulations
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attending or executing consents or objections to consents may act with respect
to an equal number of shares.
2.12 Voting of Shares by Certain Holders. Shares standing in the name of
another corporation may be voted by the chairman of the board, president, any
vice president, the secretary or the treasurer of the corporation holding such
shares and any such officer shall conclusively be deemed to have authority to
vote on behalf of such corporation and to appoint proxies and execute consents,
waivers or releases unless it appears by a certified copy of the regulations,
bylaws or a resolution of the board of directors or executive committee of such
corporation that such authority does not exist or is vested in some other
officer or person. Shares registered in the name of another held by a fiduciary
may be voted by him or her, either in person or by proxy, on proof of the fact
that legal title to the stock has devolved on him, or her in a fiduciary
capacity and that he or she is qualified to act in that capacity. A stockholder
whose shares are pledged shall be entitled to vote such shares until the shares
have been transferred into the name of the pledgee, and thereafter the pledgee
shall be entitled to vote the shares so transferred, but this Amended and
Restated Regulation does not affect the validity of any agreement between the
pledgor and pledgee as to the giving of proxies or the exercise of voting
rights.
2.13 Stockholder Proposals. Stockholder proposals shall be made in
accordance with the provisions of the Corporation's Amended and Restated
Articles of Incorporation, which provisions are incorporated herein with the
same effect as if they were set forth herein.
2.14 Inspectors. For each meeting of stockholders, the Board of Directors
in advance of the meeting, may appoint one or more inspectors of election. If
for any meeting the inspector(s) appointed by the Board of Directors shall be
unable to act or the Board of Directors shall fail to appoint any inspector, one
or more inspectors may be appointed at the meeting by the chairman thereof. Such
inspectors shall determine the number of shares outstanding, the voting rights
with respect to each, the shares represented at the meeting, the existence of a
quorum, the authenticity, validity and effect of proxies, receive and canvass
the votes for the election of directors and or any proposal voted on by ballot
and/or by proxy and hear and determine all challenges and questions arising in
connection with the vote, count and tabulate all votes, consents, waivers and
releases, determine and announce the result and do all acts as are proper to
conduct the election or vote with fairness to all stockholders. In all cases
where the right to vote upon any share of the Corporation shall be questioned,
it shall be the duty of the inspectors to examine the Stock Ledger of the
Corporation as evidence of the shares held, and all shares that appear standing
thereon in the name of any person or persons may be voted upon by such person or
persons. Each inspector before entering upon the duties of such office shall
take an oath to execute his or her duties with strict impartiality and to the
best of his or her ability.
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Miami Computer Supply Corporation
Amended and Restated Code of Regulations
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ARTICLE III
BOARD OF DIRECTORS
3.1 Number and Powers. The management of all the affairs, property and
interests of the Corporation shall be vested in a Board of Directors. The Board
of Directors shall consist of five (5) persons as of the effective date of these
Amended and Restated Regulations. Directors need not be residents of the State
of Ohio nor hold stock of the Corporation. The Board of Directors, other than
those who may be elected by the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation, may, by
resolution of the majority of the Whole Board of Directors and a majority of the
Continuing Directors then in office (as defined by Article X of the Amended and
Restated Articles), be divided into two or three classes as nearly equal in
number as possible, each class having not less than three directors, with one
class to be elected annually. At each annual meeting of stockholders subsequent
to the effective date of the Amended and Restated Articles, if the Board is
divided into two or three classes, directors elected to succeed those whose
terms are expiring shall be elected for a term of office to expire at the second
or third succeeding annual meeting of stockholders, respectively, and when their
respective successors are elected and qualified. Unless the Board is divided
into classes as permitted hereby, all Directors shall be elected annually. No
holder of the capital stock of the Corporation shall be permitted to cumulate
his votes in the election of directors. In addition to the powers and
authorities expressly conferred upon it by these Amended and Restated
Regulations and the Amended and Restated Articles, the Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Amended and Restated Articles or by these
Amended and Restated Regulations directed or required to be exercised or done by
the stockholders.
3.2 Change of Number. The number of directors may at any time be increased
or decreased by a vote of a majority of the Whole Board of Directors and a
majority of the Continuing Directors, as such terms are defined in the Amended
and Restated Articles, provided that no decrease shall have the effect of
shortening the term of any incumbent director except as provided in Sections 4.3
and 4.4 hereunder.
3.3 Vacancies. All vacancies in the Board of Directors shall be filled in
the manner provided in the Corporation's Amended and Restated Articles, which
provisions are incorporated herein with the same effect as if they were set
forth herein.
3.4 Removal of Directors. Directors may be removed in the manner provided
in the Corporation's Amended and Restated Articles, which provisions are
incorporated herein with the same effect as if they were set forth herein.
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Amended and Restated Code of Regulations
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3.5 Regular Meetings. Regular meetings of the Board of Directors shall be
held at least once each quarter on such day as the Board of Directors by
resolution shall prescribe and at such hour as may be stated in the notice of
the meeting. Meetings of committees of the Board shall be held as prescribed by
resolution of the Board of Directors or by resolution of such committee. At
least two (2) days' notice of the time and place of each meeting shall be
personally delivered, mailed, sent by facsimile with receipt confirmed by
telephone at the director's residence or principal place of business or given by
telephone to each member of the Board or such committee. Such notice shall be
deemed to be delivered when deposited in the mail so addressed with postage
prepaid. Neither the business to be transacted at, nor the purpose of, any
regular meeting need be specified in the notice or any waiver of notice of such
meeting. Regular meetings of the Board of Directors or any committee may be held
at the principal place of business of the Corporation or at such other place or
places, either within or without the State of Ohio, as the Board of Directors or
such committee, as the case may be, may from time to time designate. The annual
meeting of the Board of Directors shall be held without notice immediately after
the adjournment of the annual meeting of stockholders, for the purpose of
organizing the Board, electing officers and members of committees and
transacting other business.
3.6 Special Meetings.
(a) Special meetings of the Board of Directors may be called at any
time by the Chairman, the President or by a majority of the authorized number of
directors, to be held at the principal place of business of the Corporation or
at such other place or places as the Board of Directors or the person or persons
calling such meeting may from time to time designate. Notice of all special
meetings of the Board of Directors shall be given to each director by at least
two (2) days' service of the same by facsimile with receipt confirmed by
telephone, telephone or personally, and by at least three (3) days' service when
delivered by mail at the address at which the director is most likely to be
reached. Such notice shall be deemed to be delivered when deposited in the mail
so addressed with postage prepared. Such notice need not specify the business to
be transacted at, nor the purpose of, the meeting.
(b) Special meetings of any committee may be called at any time by
such person or persons and with such notice as shall be specified for such
committee by the Board of Directors, or in the absence of such specification, in
the manner and with the notice required for special meetings of the Board of
Directors.
3.7 Quorum.
(a) A majority of the Whole Board of Directors of the Corporation, as
such term is defined in the Amended and Restated Articles, at the time of a
meeting of the Board of
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Amended and Restated Code of Regulations
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Directors shall be necessary at all meetings to constitute a quorum for the
transaction of business. At any meeting of the Board, no action shall be taken
(except adjournment, in the manner provided below) until after a quorum has been
established.
(b) The act of a majority of directors who are present at a meeting at
which a quorum previously has been established (or at any adjournment of such
meeting, provided that a quorum previously shall have been established at such
adjourned meeting) shall be the act of the Board of Directors, regardless of
whether or not a quorum is present at the time such action is taken. In
determining the number of directors who are present at the time any such action
is taken (for the purpose of establishing the number of votes required to take
action on any proposition or question submitted to the Board), any director who
is in attendance at such meeting but who, for just cause, is disqualified to
vote on such proposition or question, shall not be considered as being present
at the time of such action.
(c) In the event a quorum cannot be established at the beginning of a
meeting, a majority of the directors present at the meeting, or the director, if
there be only one person, or the Secretary of the Corporation, if there be no
director present, may adjourn the meeting from time to time until a quorum be
present. Only such notice of such adjournment need be given as the Board may
from time to time prescribe.
3.8 Waiver of Notice. Attendance of a director at a meeting of directors
shall constitute a waiver of notice of such meeting, except where a director
attends for the express purpose of objecting, prior to or at the commencement of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. A waiver of notice signed by the director or
directors, whether before or after the time stated for the meeting, shall be
equivalent to the giving of notice.
3.9 Registering Dissent. A director who is present at a meeting of the
Board of Directors at which action on a corporate matter is taken shall be
presumed to have assented to such action unless the director announces his
dissent at the meeting and his dissent shall be entered in the minutes of the
meeting, or unless he shall file his written dissent to such action with the
person acting as the secretary of the meeting, before the adjournment thereof,
or shall forward such dissent by certified mail, return receipt requested,
bearing a postmark from the United State Postal Service to the Secretary of the
Corporation within a reasonable time after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor of such action
or failed to make his dissent known at the meeting.
3.10 Executive, Audit and Other Committees.
(a) Standing or special committees may be appointed from its own
number by the Board of Directors from time to time and the Board of Directors
may from time to time
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Amended and Restated Code of Regulations
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invest such committees with such powers as it may see fit, subject to such
conditions as may be prescribed by the Board. An Executive Committee may be
appointed by resolution passed by a majority of the Whole Board of Directors. It
shall have and exercise all of the authority of the Board of Directors, except
in reference to the filling of vacancies among the directors or in any committee
of the directors. An Audit Committee may be appointed by a resolution approved
by a majority of the Whole Board of Directors, as such term is defined in the
Corporation's Amended and Restated Articles, and at least a majority of the
members of the Audit Committee shall be directors who are not also officers of
the Corporation. The Audit Committee shall recommend independent auditors to the
Board of Directors annually and shall review the Corporation's budget, the scope
and results of the audit performed by the Corporation's independent auditors and
the Corporation's system of internal control with management and such
independent auditors, and such other duties as may be assigned to such
Committee. All committees so appointed shall consist of not less than three (3)
directors, keep regular minutes of the transactions of their meetings and shall
cause them to be recorded in books kept for that purpose at the principal office
of the Corporation. The designation of any such committee, and the delegation of
authority thereto, shall not relieve the Board of Directors, or any member
thereof, of any responsibility imposed by law.
(b) Unless otherwise provided by the Board of Directors, a majority of
the members of any committee shall constitute a quorum for the transaction of
business at any meeting of such committee and the acts of a majority of the
members present at a meeting at which a quorum is present shall be the acts of
the committee.
3.11 Remuneration. Directors, as such, may receive a stated salary for
their service, and by resolution of the Board of Directors, a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each regular or
special meeting of such Board. Members of standing or special committees may be
allowed like compensation for attending committee meetings.
3.12 Action by Directors Without a Meeting. Any action required or which
may be taken at a meeting of the directors, or of a committee thereof, may be
taken without a meeting if a consent in writing, setting forth the action so
taken or to be taken, shall be signed by all of the directors, or all of the
members of the committee, as the case may be and filed with the minutes of the
proceedings of the Board or Committee. Such consent shall have the same effect
as a unanimous vote.
3.13 Action of Directors by Communications Equipment. Any action required
or which may be taken at a meeting of directors, or of a committee thereof, may
be taken by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same time.
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3.14 Nominations. Nominations of candidates for election as directors at
any annual meeting of stockholders shall be made in the manner set forth in the
provisions of the Corporation's Amended and Restated Articles, which provisions
are incorporated herein with the same effect as if they were set forth herein.
3.15 Presiding Officer. The Chairman of the Board shall preside at all
meetings of the Board of Directors at which the Chairman is present. In the
Chairman's absence, the Vice Chairman (if any) shall preside. In the absence of
the Chairman and/or Vice Chairman, the Board shall select a chairman of the
meeting from among the directors present.
ARTICLE IV
CAPITAL STOCK
4.1 Certificates. Certificates of stock shall be issued in numerical order,
and each stockholder shall be entitled to a certificate signed by the Chairman
of the Board, President or a Vice President, and the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and may be sealed with the
seal of the Corporation or a facsimile thereof. The signatures of such officers
may be facsimiles if the certificate is manually signed on behalf of a transfer
agent, or registered by a registrar, other than the Corporation itself or an
employee of the Corporation. If an officer who has signed or whose facsimile
signature has been placed upon such certificate ceases to be an officer before
the certificate is issued, it may be issued by the Corporation with the same
effect as if the person were an officer on the date of issue. Each certificate
of stock shall state:
(a) that the Corporation is organized under the laws of the State of
Ohio;
(b) the name of the person to whom issued;
(c) the number and class of shares and the designation of the series,
if any, which such certificate represents;
(d) the par value of each share represented by such certificate; and
(e) the designations and preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption and the differences of the relative rights
and preference between the shares of each series to the extent that they have
been set and the authority of the Board of Directors to set the relative rights
and preferences of subsequent series, or a statement that the Corporation shall
provide such information to any stockholder upon request and without charge
within five (5) days after receipt of written request therefor.
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4.2 Transfers.
(a) Transfers of stock shall be made only upon the stock transfer
books of the Corporation, kept at the principal office of the Corporation or at
its principal place of business, or at the office of its transfer agent or
registrar, by the person or person named in the certificate or by the attorney
lawfully constituted in writing representing such person or persons and upon
surrender of the certificate or certificates being transferred which certificate
shall be properly endorsed for transfer or accompanied by a duly executed stock
power. Whenever a certificate is endorsed by or accompanied by a stock power
executed by someone other than the person or persons named in the certificate,
evidence of authority to transfer shall also be submitted with the certificate.
All certificates surrendered to the Corporation for transfer shall be cancelled.
(b) The Board of Directors shall have the power and authority to make
all such rules and regulations as it shall deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the
Corporation.
(c) Transfer agents and registrars for the Corporation's stock shall
be banks, trust companies or other corporations located within or without the
State of Ohio as shall be appointed by the Board of Directors. The Board shall
also define the authority of such transfer agents and registrars. The Board of
Directors may, by resolution, open a share register in any state of the United
States, and may employ an agent or agents to keep such register, and to record
transfers of shares therein.
(d) The Corporation shall not transfer shares of capital stock of the
Corporation and no person shall have the right to receive shares of capital
stock of the Corporation in any transaction which is deemed by the Board of
Directors to be "control share acquisition" as defined by Section 1704 of the
OGCL unless such acquisition is determined to be in the best interests of the
Corporation by a majority of the Whole Board of Directors and a majority of the
Continuing Directors and the Board of Directors consents to such transfer prior
to any transfer to any interested shareholder (as defined by Section
1704.01(C)(8) of the OGCL).
4.3 Registered Owner. Registered stockholders shall be treated by the
Corporation as the holders in fact of the stock standing in their respective
names and the Corporation shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as expressly provided
below or by the laws of the State of Ohio. The Board of Directors may adopt by
resolution a procedure whereby a stockholder of the Corporation may certify in
writing to the Corporation that all or a portion of the shares registered in the
name of such stockholder are held for the account of a specified person or
persons.
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4.4 Mutilated, Lost or Destroyed Certificates. In case of any mutilation,
loss or destruction of any certificate of stock, another may be issued in its
place upon receipt of satisfactory proof of such mutilation, loss or
destruction. The Board of Directors may impose conditions on such issuance and
may require the giving of a satisfactory open penalty bond with surety or
indemnity to the Corporation in such sum as they might determine and upon the
payment of the Corporation's reasonable costs incident thereto, or establish
such other procedures as they deem necessary.
4.5 Fractional Shares or Scrip. The Corporation may but is not obliged to
(a) issue fractions of a share which shall entitle the holder to exercise voting
rights, to receive dividends thereon, and to participate in any of the assets of
the Corporation in the event of liquidation; (b) arrange for the disposition of
fractional interests by those entitled thereto; (c) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
shares are determined; or (d) issue scrip in registered or bearer form which
shall entitle the holder to receive a certificate for a full share upon the
surrender of such scrip aggregating a full share, and unless otherwise provided,
does not entitle its holder to exercise voting rights, receive dividends, or
participate in the assets of the Corporation in the event of liquidation.
4.6 Shares of Another Corporation. Shares owned by the Corporation in
another corporation, domestic or foreign, may be voted by such officer, agent or
proxy as the Board of Directors may determine or, in the absence of such
determination, by the President or a Vice President of the Corporation.
ARTICLE V
OFFICERS
5.1 Designations. The officers of the Corporation shall be a Chairman of
the Board, a President, a Secretary and a Treasurer, such Vice Presidents,
Assistant Secretaries and Assistant Treasurers as the Board may designate, each
of whom shall be elected by a majority vote of the Board of Directors for one
year at their first meeting after the annual meeting of stockholders, and who
shall hold office until their successors are elected and qualify. The Board of
Directors also may elect or authorize the appointment of such other officers as
the business of the Corporation may require. Any two or more offices may be held
by the same person, but may not execute, acknowledge or verify an instrument
required by law to be executed, acknowledged or verified by two or more
officers. The Board of Directors may appoint a Vice Chairman of the Board, but
the person holding that position shall not be considered an officer of the
Corporation.
5.2 Powers and Duties. The officers of the Corporation shall have such
authority and perform such duties as the Board of Directors may from time to
time authorize or
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determine. In the absence of action of the Board of Directors, the officers
shall have such powers and duties as may be provided in these Amended and
Restated Regulations and as generally pertain to their respective offices.
5.3 Delegation. In the case of absence or inability to act of any officer
of the Corporation and of any person herein authorized to act in his place, the
Board of Directors may from time to time delegate the powers or duties of such
officer to any other officer or any directors or other person whom it may
select.
5.4 Vacancies. Vacancies in any office arising from any cause may be filled
by a vote of a majority of the Whole Board of Directors, as such term is defined
in the Amended and Restated Articles, at any regular or special meeting of the
Board.
5.5 Other Officers. Directors may appoint such other officers and agents as
it shall deem necessary or expedient, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
5.6 Term; Removal. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer or agent elected or
appointed by the Board of Directors may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Whole Board of Directors, as
such term is defined in the Corporation's Amended and Restated Articles, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed.
5.7 Salaries. The salaries and other compensation of all officers of the
Corporation shall be fixed by the Board of Directors.
ARTICLE VI
DIVIDENDS AND FINANCE
6.1 Dividends. Subject to the conditions and limitations imposed by the
OGCL, dividends may be declared by the Board of Directors and paid by the
Corporation.
6.2 Reserves. There may be set aside out of the net earnings of the
Corporation such sum or sums as the directors from time to time in their
absolute discretion deem expedient as a reserve fund to meet contingencies or
for any other proper purpose.
6.3 Depositories. The monies of the Corporation shall be deposited in the
name of the Corporation in such financial institution or financial institutions
or trust company or trust companies as the Board of Directors shall designate,
and shall be drawn out only by
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check or other order for payment of money signed by such persons and in such
manner as may be determined by resolution of the Board of Directors. All checks,
drafts or other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation and in such manner as shall
from time to time be determined by resolution of the Board of Directors. In the
absence of such a resolution, the President, and Vice President - Chief
Financial Officer shall be deemed authorized to sign such documents.
6.4 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents to enter into any contracts or execute and deliver any
instrument in the name and on behalf of the Corporation. Such authority may be
general or confined to specific instances. Unless otherwise directed by the
Board of Directors, the Chairman of the Board shall have the authority to bind
the Corporation to those contracts made in the ordinary and usual course of
business of the Corporation.
6.5 Loans. No loan shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by the
Board of Directors. Such authority may be general or confined to specific
purposes.
ARTICLE VII
CORPORATE SEAL
The Board of Directors may provide a suitable seal, containing the name of
the Corporation, which seal shall be in the custody of the Secretary of the
Corporation, and may provide for one or more duplicates thereof to be kept in
the custody of such other officer of the Corporation as the Board may prescribe.
ARTICLE VIII
BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account and shall keep minutes and proceedings of its stockholders and Board of
Directors; and it shall keep at its principal office, or at the office of its
transfer agent or registrar, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of the shares held by
each. Any books, records and minutes may be in written form or any other form
capable of being converted into written form within a reasonable time.
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ARTICLE IX
FISCAL YEAR; ANNUAL AUDIT
The fiscal year of the Corporation shall end on the last day of December
each year. The Corporation shall be subject to an annual audit as of the end of
its fiscal year by independent public accountants appointed by and responsible
to the Board of Directors. The appointment of such accountants shall be subject
to annual ratification by the stockholders.
ARTICLE X
PERSONAL LIABILITY OF DIRECTORS; INDEMNIFICATION
(a) A director of the Corporation shall not be personally liable for
monetary damages for action taken, or any failure to take action, as a director,
to the extent set forth in the Corporation's Amended and Restated Articles,
which provisions are incorporated herein with the same affect as if they were
set forth herein.
(b) The Corporation shall indemnify any person who is a director,
officer, employee or agent of the Corporation to the extent set forth in the
Corporation's Amended and Restated Articles, which provisions are incorporated
herein with the same affect as if they were set forth herein.
ARTICLE XI
AMENDMENTS
Amendments. These Regulations may be altered, amended or repealed only in
the manner set forth in the Corporation's Amended and Restated Articles, which
provisions are incorporated herein with the same effect as if they were set
forth herein.
As adopted by the stockholders of the Corporation this 18th day of
September, 1996.
/s/ Thomas C. Winstel
-------------------------
Thomas C. Winstel
Secretary
