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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FABRI-CENTERS OF AMERICA, INC.
(Exact Name of Registrant as Specified in its Charter)
Ohio 34-0720629
(State of Incorporation or Organization) (IRS Employer
Identification no.)
5555 Darrow Road, Hudson, Ohio 44236
(Address of principal executive offices) (zip code)
If this Form relates to the If this Form relates to the
registration of a a class of debt registration of a class of debt
securities and is effective upon securities and is to become
filing pursuant to General effective simultaneously with the
Instruction (A)(c)(1) please effectiveness of concurrent
check the following box: [ ] registration statement under
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:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
- ------------------ ------------------------------
Class A Common Shares, without
par value New York Stock Exchange
Class B Common Shares, without
par value New York Stock Exchange
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
(Title of class)
--------------------------------------
The Exhibit Index is located on page 6.
Page 1 of 27 Pages
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description of the Company's Class A Common
Shares, without par value ("Class A Shares"), and Class B
Common Shares, without par value ("Class B Shares"), which
will be outstanding upon the effectiveness of an amendment
to the 1992 Amended Articles of Incorporation of
Fabri-Centers of America, Inc., as set forth under the
caption "Description of Common Stock" in the Company's
Definitive Proxy Statement, dated July 5, 1995 (the "Proxy
Statement"), relating to a special meeting in lieu of an
annual meeting of shareholders to be held on August 2,
1995, as filed with the Securities and Exchange Commission
(the "Commission") on July 6, 1995, including all
appendices attached thereto, is hereby incorporated by
reference.
The foregoing description of the Class A Shares
and Class B Shares hereby is supplemented with the
following information:
Liquidation Rights. Upon liquidation, dissolution
or winding up of the Company, the assets legally available
for distribution to shareholders are distributable ratably
among the holders of Class A Shares and Class B Shares at
the time outstanding, subject to prior distribution rights
of creditors of the Company and to the preferential right
of any outstanding shares of Serial Preferred Stock (the
"Serial Preferred").
Dividend Rights. The dividend rights of the
holders of the Class A Shares and Class B Shares, which are
described in the Proxy Statement, are subject to the
preferences that may be applicable to the holders of any
outstanding shares of Serial Preferred.
Serial Preferred Stock. The Board of Directors
has the authority to issue 5,000,000 shares of Serial
Preferred in one or more series and to fix the
designations, relative powers, preferences, rights,
qualifications, limitations and restrictions on all shares
of each series, including, without limitation, dividend
rates, preemptive rights, conversion rights, voting rights,
redemption and sinking fund provisions, liquidation
preferences and the number of shares constituting each such
series, without any further vote or action by the
shareholders. The issuance of Serial Preferred could
decrease the amount of earnings or assets available for
distribution to the holders of Class A Shares and Class B
Shares or adversely affect the rights and powers of the
Class A Shares and Class B Shares (including the voting
rights of the Class A Shares). The issuance of Serial
Preferred could also have the effect of delaying, deferring
or preventing a change in control of the Company without
further action by the shareholders. The Company has no
present plans to issue any shares of Serial Preferred.
Certain Provisions of Amended Articles,
Regulations and Rights Plan. Under Article Tenth of the
Company's Amended Articles of Incorporation
Page 2 of 27 Pages
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(the "Amended Articles"), the affirmative vote of the
holders of at least 80% of the voting power of the Company
is required in order to effect a merger, consolidation,
sale, lease or other disposition of certain amounts of
assets of the Company where the other party to the
transaction, including its affiliates and associated
persons, is a holder, directly or indirectly, of 20% or
more of the aggregate voting power of all outstanding
shares of the Company entitled to vote in elections of
Directors (such party being hereinafter referred to as an
"Interested Party"). The requirement for approval by an
80% vote is not applicable to proposals wherein (i) certain
minimum price and form of consideration requirements are
met and (ii) the "Continuing Directors" (as defined in the
Amended Articles) have approved the proposed transaction.
Such voting provisions of the Company's Amended Articles
can be changed or amended only by an affirmative vote of
the holders of at least 80% of the Company's then
outstanding voting power.
The Company's Board of Directors is currently
divided into three classes. Pursuant to the Company's Code
of Regulations, in general, the Directors of the class
elected at each annual meeting of shareholders hold office
for a term of three years.
The Board of Directors has adopted a shareholders'
rights plan and issued one right for each Class A Share
outstanding. The Rights are exercisable only if a person
or group buys, or announces a tender offer for, 20% or more
of the Company's Class A Shares or the Board of Directors
declares a person or group to be an "adverse person."
It is possible that the above-described voting
requirements, the provisions regarding division of the
Board into classes and the shareholders' rights plan will
discourage certain other companies from making a tender
offer for the Company's shares. These provisions could
have the incidental effect of inhibiting certain changes in
management and may also prevent temporary fluctuations in
the market price of the Company's shares which often result
from actual or rumored takeover attempts. It is also
possible that such provisions could make it more difficult
to accomplish a transaction which outside shareholders may
deem to be in their best interests.
Certain Provisions of Ohio Law. As an Ohio
corporation, the Company is subject to certain provisions
of Ohio law which may discourage or render more difficult
an unsolicited takeover of the Company. Among these are
provisions that (i) prohibit certain mergers, sales of
assets, issuances or purchases of securities, liquidation
or dissolution, or reclassifications of the then
outstanding shares of an Ohio corporation involving certain
holders of stock representing 10% or more of the voting
power, unless such transactions are either approved by the
Directors in office prior to the 10% shareholder
becoming such or involve a 10% shareholder which has been
such for at least three years and certain requirements
related to the price and form of
Page 3 of 27 Pages
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consideration to be received by shareholders are met;
and (ii) provide Ohio corporations with the right to
recover profits realized under certain circumstances by
persons engaged in "greenmailing" or who otherwise sell
securities of a corporation within 18 months of proposing
to acquire such corporation.
In addition, pursuant to Section 1701.831 of the
Ohio Revised Code, the purchase of certain levels of voting
power of the Company (one-fifth or more, one-third or more,
or a majority) can be made only with the prior
authorization of the holders of at least a majority of the
total voting power of the Company and the separate prior
authorization of the holders of at least a majority of the
voting power held by shareholders other than the proposed
purchaser, officers of the Company and Directors of the
Company who are also employees.
ITEM 2. EXHIBITS.
The Registrant will file the following exhibit
with the Commission and the New York Stock Exchange in
accordance with the Instructions as to Exhibits of Form
8-A.
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
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<S> <C>
1. Form of 1995 Amended Articles of Incorporation of Fabri-Centers of America, Inc.
</TABLE>
Page 4 of 27 Pages
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SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Company has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
FABRI-CENTERS OF AMERICA, INC.
By: /s/ Robert L. Norton
-----------------------------------
Robert L. Norton
Vice Chairman of the Board and
Chief Financial Officer
Date: July 20, 1995
Page 5 of 27 Pages
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE
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<S> <C> <C>
1. Form of 1995 Amended Articles of Incorporation of 7
Fabri-Centers of America, Inc.
</TABLE>
Page 6 of 27 Pages
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EXHIBIT 1
1995
AMENDED ARTICLES OF INCORPORATION
OF
FABRI-CENTERS OF AMERICA, INC.
FIRST: The name of the Corporation is FABRI-CENTERS
OF AMERICA, INC.
SECOND: The place in the State of Ohio where its
principal office is located is the Village of Hudson, County of Summit.
THIRD: The purposes for which, and for any of
which, it is formed are:
a) To carry on the business of dealing in fabrics and
in connection therewith to buy and sell, at wholesale or
retail, import, export, manufacture, weave, produce, repair,
adapt, prepare, use and otherwise deal in, rubber, cotton,
wool, silk, flax, glass, synthetic and all other fibrous
materials, goods and fabrics, and in goods and fabrics into
which rubber, cotton, wool, silk, flax, glass, synthetic or any
fibrous material enters as a component part.
b) To develop, manufacture, repair, treat, finish,
buy, sell, and generally deal in, in every manner, materials,
articles and products of every kind and description, and to do
all things necessary or incidental thereto, including owning,
holding and dealing in, in every manner, all real and personal
property necessary or incidental to the foregoing purposes.
c) In general to carry on any other lawful business
whatsoever in connection with the business of the Corporation
or which is calculated, directly or indirectly, to promote the
interests of the Corporation or to enhance the value of its
properties, and to have and exercise all rights, powers and
privileges which are now or may hereafter be conferred upon
corporations by the laws of Ohio.
The Corporation reserves the right at any time and from
time to time to change substantially its purposes in any manner now or
hereafter permitted by statute.
FOURTH: The authorized number of shares of the
Corporation is 155,000,000, consisting of 5,000,000 shares of Serial
Preferred Stock without par value ("Serial Preferred Shares"), 75,000,000 Class
A Common Shares without par value ("Class A Shares") and 75,000,000 Class B
Common Shares without par value ("Class B Shares" and together with the Class A
Shares, the
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"Common Stock"). The shares of each class shall have the express terms set
forth in this Article Fourth.
DIVISION A: Express Terms of Serial Preferred Shares
-----------------------------------------
1. The Serial Preferred Shares may be issued from time
to time in one or more series. Each Serial Preferred Share of any one
series shall be identical with each other share of the same series in all
respects, except as to the date from which dividends thereon shall be
cumulative by reason of different dates of issuance; and all Serial Preferred
Shares of all series shall rank equally and shall be identical, except in
respect of the terms that may be fixed by the Board of Directors as hereinafter
provided. Subject to the provisions of Sections 2 through 7 of this Division
A, which provisions shall apply to all Serial Preferred Shares of all series,
the Board of Directors is hereby authorized to cause Serial Preferred Shares to
be issued in one or more series and with respect to each such series, prior to
the issuance thereof, to fix:
(a) The designation of the series, which may be by
distinguishing number, letter or title.
(b) The number of shares of the series, which number
the Board of Directors may increase or decrease, except where otherwise
provided in the creation of the series.
(c) The dividend rate of the series.
(d) The dates on which dividends, if declared, shall
be payable and the dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any,
for shares of the series.
(f) The terms and amount of any sinking fund provided
for the purchase or redemption of shares of the series.
(g) Whether the shares of the series shall be
convertible into Class A Shares and/or Class B Shares and, if so, the
conversion rate or rates or price or prices and the adjustments
thereof, if any, and all other terms and conditions upon which
conversions may be made.
(h) The amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
(i) Restrictions (in addition to those set forth in
Sections 6(b) and 6(c) of this Division A) on
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the issuance of shares of the same series or of any other class or
series.
The Board of Directors is authorized to adopt from time to time amendments to
the Articles of Incorporation or Amended Articles of Incorporation of the
Corporation fixing, with respect to each such series, the matters specified in
clauses (a) through (i) of this Section 1.
2. The holders of Serial Preferred Shares of each series, in
preference to the holders of Common Stock and any other class of shares
ranking junior to the Serial Preferred Shares, shall be entitled to receive,
out of any funds legally available and when and as declared by the Board of
Directors, cash dividends at the rate (and no more) for such series fixed in
accordance with the provisions of Section 1 of this Division A, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after the
date or dates fixed with respect to such series. No dividends may be paid upon
or declared and set apart for any of the Serial Preferred Shares for any
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratably in proportion to the respective
annual dividend rates fixed therefor, shall be declared and paid or a sum
sufficient for payment thereof set apart for the Serial Preferred Shares of all
series.
3. So long as any Serial Preferred Shares are outstanding, no
dividend (except a dividend payable in Class A Shares or Class B Shares
or in other shares of the Corporation ranking junior to the Serial Preferred
Shares) shall be paid or declared or any distribution be made (except as
aforesaid) in respect of the Class A Shares or Class B Shares or in respect of
other shares of the Corporation ranking junior to the Serial Preferred Shares,
nor shall any Class A Shares or Class B Shares or any other shares of the
Corporation ranking junior to the Serial Preferred Shares be purchased, retired
or otherwise acquired by the Corporation (except out of the proceeds of the
sale of Class A Shares or Class B Shares or other shares of the Corporation
ranking junior to the Serial Preferred Shares received by the Corporation
subsequent to January 28, 1984),
(a) unless all accrued and unpaid dividends on the
Serial Preferred Shares of all series, including the full
dividends for the current quarterly dividend period, shall have
been declared and paid or a sum sufficient for payment thereof
set apart, and
(b) unless redemption of Serial Preferred Shares of
any series shall have been effected from, and any required
payment shall have been made into, any sinking fund provided
for shares of such series in accordance with the provisions of
Section 1 of this Division A.
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4. (a) Subject to the express terms of each series and to the
provisions of Section 6(b)(iii) of this Division A, the Corporation (i)
may from time to time redeem all or any part of the Serial Preferred Shares of
any series at the time outstanding at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Division A, or (ii) shall from time to time
make such redemptions of the Serial Preferred Shares as may be required to
fulfill the requirements of any sinking fund provided for shares of such series
at the applicable sinking fund redemption price fixed in accordance with the
provisions of Section 1 of this Division A, together, in each case, with
accrued and unpaid dividends to the redemption date.
(b) Notice of every redemption shall be mailed by first class
mail, postage prepaid, to the holders of record of the Serial Preferred
Shares to be redeemed, at their respective addresses then appearing on the
books of the Corporation, not less than 30 or more than 60 days prior to the
date fixed for redemption. At any time before or after notice has been given
as above provided, the Corporation may deposit the aggregate redemption price
of the Serial Preferred Shares to be redeemed, together with accrued and unpaid
dividends thereon to the redemption date, with any bank or trust company in
Cleveland, Ohio, or New York, New York, having capital and surplus of more than
$50,000,000, named in such notice, directed to be paid to the respective
holders of the Serial Preferred Shares to be redeemed, in amounts equal to the
redemption price of all Serial Preferred Shares so to be redeemed, together
with accrued and unpaid dividends thereon to the redemption date, upon
surrender of the share certificate or certificates held by such holders, and
upon the giving of such notice and the making of such deposit such holders
shall cease to be shareholders with respect to such shares, and after such
notice shall have been given and such deposit shall have been made such holders
shall have no claim against the Corporation or privileges with respect to such
shares except only to receive such money from such bank or trust company
without interest or the right to exercise, before the redemption date, any
unexpired rights of conversion. In case less than all of the outstanding
Serial Preferred Shares of any series are to be redeemed, the Corporation shall
select by lot the shares so to be redeemed in such manner as shall be
prescribed by its Board of Directors. If the holders of Serial Preferred
Shares that shall have been called for redemption shall not, within six years
after such deposit, claim the amount deposited for the redemption of their
shares, any such bank or trust company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and
to such holders.
(c) Any Serial Preferred Shares that are redeemed by the
Corporation pursuant to the provisions of this Section 4 of this
Division A and any Serial Preferred Shares that are purchased and delivered in
satisfaction of any sinking fund
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requirements provided for shares of such series and any Serial Preferred Shares
that are converted in accordance with their express terms shall be cancelled
and not reissued. Any Serial Preferred Shares otherwise acquired by the
Corporation shall be restored to the status of authorized and unissued Serial
Preferred Shares without serial designation.
5. (a) The holders of Serial Preferred Shares of any series shall, in
case of liquidation, dissolution or winding up of the affairs of the
Corporation, be entitled to receive in full, out of the assets of the
Corporation, including its capital, before any amount shall be paid or
distributed among the holders of Class A Shares or Class B Shares or any other
shares ranking junior to the Serial Preferred Shares, the amounts fixed with
respect to shares of any such series in accordance with Section 1 of this
Division A, plus in any such event an amount equal to all dividends accrued and
unpaid thereon to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up of the affairs of the Corporation. In
case the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Serial Preferred Shares
of all series of the full preferential amount to which the holders thereof are
respectively entitled, then such net assets shall be distributed ratably upon
outstanding Serial Preferred Shares of all series in proportion to the full
preferential amount to which the holder of each such share is entitled. After
payment to holders of Serial Preferred Shares of the full preferential amounts
as aforesaid, holders of Serial Preferred Shares as such shall have no right or
claim to any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all of the property or business of
the Corporation shall not be deemed to be a dissolution, liquidation or winding
up of the Corporation for the purposes of this Section 5 of this Division A.
6. (a) The holders of Serial Preferred Shares of all series shall be
entitled to one vote for each such share upon all matters presented to
shareholders; and, except as otherwise provided herein or required by law, the
holders of Serial Preferred Shares of all series and the holders of Class A
Shares shall vote together as one class on all matters. If, and as often as,
the Corporation shall be in default in the payment of the equivalent of six
quarterly dividends (whether or not consecutive) on any series of Serial
Preferred Shares at any time outstanding, whether or not earned or declared,
the holders of Serial Preferred Shares of all series voting separately as a
class and in addition to all other rights to vote for Directors shall
thereafter be entitled to elect, as herein provided, two members of the Board
of Directors of the Corporation; provided, however, that the special class
voting rights provided for herein, when the same shall have become vested,
shall remain so vested until all accrued and unpaid dividends on
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the Serial Preferred Shares of all series then outstanding shall have been
paid, whereupon the holders of Serial Preferred Shares shall be divested of
their special class voting rights in respect of subsequent elections of
Directors, subject to the revesting of such special class voting rights in the
event hereinabove specified in this Section 6(a). In the event of default
entitling the holders of Serial Preferred Shares to elect two Directors as
above specified, a special meeting of the shareholders for the purpose of
electing such Directors shall be called by the Secretary of the Corporation
upon written request of, or may be called by, the holders of record of at least
10% of the Serial Preferred Shares of all series at the time outstanding, and
notice thereof shall be given in the same manner as that required for the
annual meeting of shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual meeting of
shareholders shall be held within 90 days after the date of receipt of the
foregoing written request from the holders of Serial Preferred Shares. At any
meeting at which the holders of Serial Preferred Shares shall be entitled to
elect Directors, the holders of not less than one-third of the outstanding
Serial Preferred Shares of all series, present in person or by proxy, shall be
sufficient to constitute a quorum and the vote of the holders of a majority of
such shares so present at any such meeting at which there shall be a quorum
shall be sufficient to elect the members of the Board of Directors that the
holders of Serial Preferred Shares are entitled to elect as herein-before
provided. The two Directors who may be elected by the holders of Serial
Preferred Shares pursuant to the foregoing provisions shall be in addition to
any other Directors then in office or proposed to be elected otherwise than
pursuant to such provisions, and nothing in such provisions shall prevent any
change otherwise permitted in the total number of Directors of the Corporation
or required the resignation of any Directors elected otherwise than pursuant to
such provisions.
(b) The affirmative vote or consent of the holders of at least two-thirds
of the then outstanding Serial Preferred Shares of all series, given in person
or by proxy, either in writing or at a meeting called for the purpose at which
the holders of Serial Preferred Shares of all series shall vote separately as a
class, shall be necessary to effect any one or more of the following (but,
insofar as the holders of Serial Preferred Shares are concerned, such action
may be effected with such vote or consent):
(i) Any amendment, alteration or repeal of any of the provisions of the
Articles of Incorporation or of the Regulations of the Corporation that
affects adversely the voting powers, rights or preferences of the holders of
Serial Preferred Shares; provided, however, that for the purpose of this
clause (i) only, neither the amendment of the Articles of Incorporation of
the Corporation to authorize, or to increase the authorized or outstanding
number of, Serial Preferred Shares or of any shares of any class ranking on
a parity with or junior to the
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Serial Preferred Shares, nor the increase by the shareholders or Board of
Directors pursuant to the Regulations of the number of Directors of the
corporation shall be deemed to affect adversely the voting powers, rights or
preferences of the holders of Serial Preferred Shares; and provided further
that, if such amendment, alteration or repeal affects adversely the rights or
preferences of one or more but not all then outstanding series of Serial
Preferred Shares, only the affirmative vote or consent of the holders of at
least two-thirds of the number of the then outstanding shares of the series
so affected shall be required;
(ii) The authorization, or the increase in the authorized number, of
shares of any class ranking prior to the Serial Preferred Shares; or
(iii) The purchase or redemption (whether for sinking fund purposes or
otherwise) of less than all the then outstanding Serial Preferred Shares
except in accordance with a purchase offer made to all holders of record of
Serial Preferred Shares, unless all dividends on all Serial Preferred Shares
then outstanding for all previous quarterly dividend periods shall have been
declared and paid or funds therefore set apart and all accrued sinking fund
obligations applicable to all Serial Preferred Shares shall have been
complied with.
(c) The affirmative vote or consent of the holders of at least a majority
of the then outstanding Serial Preferred Shares of all series, given in person
or by proxy, either in writing or at a meeting called for the purpose at which
the holders of Serial Preferred Shares of all series shall vote separately as a
class, shall be necessary (but insofar as the holders of Serial Preferred
Shares are concerned, such action may be effected with such affirmative vote or
consent) to authorize any shares ranking on a parity with the Serial Preferred
Shares or an increase in the authorized number of Serial Preferred Shares.
7. For the purposes of this Division A:
(a) Whenever reference is made to shares "ranking prior to the Serial
Preferred Shares," such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over the rights of the holders of Serial
Preferred Shares.
(b) Whenever reference is made to shares "on a parity with the Serial
Preferred Shares," such reference shall mean and include all shares of the
Corporation in
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respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation rank
on an equality with the rights of the holders of Serial preferred Shares.
(c) Whenever reference is made to shares "ranking junior to the Serial
Preferred Shares," such reference shall mean and include all shares of the
Corporation other than those defined under clauses (a) and (b) of this
Section 7 as shares "ranking prior to" or "on a parity with" the Serial
Preferred Shares.
DIVISION B: Express Terms of Class A Shares and Class B Shares.
---------------------------------------------------
1. GENERAL. The Class A Shares and Class B Shares shall be subject to the
express terms of the Serial Preferred Shares and any series thereof. The
powers, preferences and rights of the Class A Shares and Class B Shares and the
qualifications, limitations and restrictions thereof, shall in all respects be
identical, except as otherwise required by law or as expressly provided in
these Amended Articles of Incorporation.
2. VOTING.
a. Each shareholder of the Corporation shall be entitled to one vote for
each Class A Share standing in such shareholder's name on the books of the
Corporation on all matters presented to shareholders for their vote,
consent, waiver, release or other action.
b. The holders of Class B Shares shall not be entitled to vote on any
matter submitted to shareholders for their vote, consent, waiver, release or
other action except as otherwise required by law.
3. DIVIDENDS AND DISTRIBUTIONS. Dividends and distributions may be
declared and paid to the holders of Class A Shares and Class B Shares in cash,
property, or other securities of the Corporation (including shares of any class
whether or not shares of such class are already outstanding) out of funds
legally available therefore. Each Class A Share and each Class B Share shall
have identical rights with respect to dividends and distributions subject to
the following:
a. subject to Section 4 of Division B of Article Fourth, at the
discretion of the Board of Directors, a dividend or distribution in cash or
property on a Class B Share may be greater (but not less) than any dividend
or distributions in cash or property on a Class A Share;
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<PAGE> 9
b. a dividend or distribution in shares of the Corporation on Class A
Shares may be paid or made in Class A Shares or Class B Shares; and
c. a dividend or distribution in shares of the Corporation on Class B
Shares may be paid or made only in Class B Shares.
4. MERGER, CONSOLIDATION, COMBINATION OR DISSOLUTION OF THE CORPORATION.
In the event of merger, consolidation or combination of the Corporation with
another entity (whether or not the Corporation is the surviving entity) or in
the event of dissolution of the Corporation, holders of Class B Shares shall be
entitled to receive in respect of each Class B Share the same indebtedness,
other securities, cash, rights, or any other property, or any combination of
shares, evidences of indebtedness, securities, cash, rights or any other
property, as holders of Class A Shares shall be entitled to receive in respect
to each share, except that any common stock that holders of Class B Shares
shall be entitled to receive in any such event may have terms substantially
similar to those of the Class B Shares as set forth in this Division B of
Article Fourth.
5. SPLITS OR COMBINATIONS OF SHARES. If the Corporation shall in any
manner split, subdivide or combine the outstanding Class A Shares or Class B
Shares, the outstanding shares of the other such class shall be proportionately
split, subdivided or combined in the same manner and on the same basis as the
outstanding shares of the class that has been split, subdivided or combined.
6. CHANGE IN NUMBER OF AUTHORIZED CLASS B SHARES. The number of authorized
Class B Shares may be increased or decreased (but not below the number then
outstanding) by the affirmative vote of the holders of a majority of the
aggregate number of outstanding Class A Shares entitled to vote in the election
of Directors voting as a single class.
7. CLASS B PROTECTION PROVISIONS.
a. If, after the Effective Time, a Person or group, each as defined in
Section 7(k) of Division B of this Article Fourth, acquires beneficial
ownership of shares representing 15% or more of the number of then outstanding
Class A Shares and such Person or group (a "Significant Shareholder") does not
then beneficially own an equal or greater percentage of all then outstanding
shares of the Class B Shares, all of which Class B Shares must have been
acquired by such Significant Shareholder after the Effective Time, such
Significant Shareholder must, within a ninety (90) day period beginning the day
after becoming a Significant Shareholder, make a public cash tender offer in
compliance with all applicable laws and regulations to acquire additional Class
B Shares as provided in this Section 7 of Division B of Article Fourth (a
"Class B Protection Transaction").
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<PAGE> 10
b. In each Class B Protection Transaction, the Significant Shareholder
must make a public tender offer to acquire that number of additional Class B
Shares determined by (i) multiplying the percentage of the number of
outstanding Class A Shares beneficially owned and acquired after the Effective
Time by such Significant Shareholder by the total number of Class B Shares
outstanding on the date such Person or group became a Significant Shareholder,
and (ii) subtracting therefrom the number of Class B Shares beneficially owned
by such Significant Shareholder on the date such Person or group became a
Significant Shareholder which were acquired after the Effective Time (as
adjusted for stock splits, stock dividends and similar recapitalizations). The
Significant Shareholder must acquire all shares validly tendered; or if the
number of Class B Shares tendered to the Significant Shareholder exceeds the
number of shares required to be acquired pursuant to this Section 7(b), the
number of Class B Shares acquired from each tendering holder shall be pro rata
based on the percentage that the number of shares tendered by such shareholder
bears to the total number of shares tendered by all tendering holders.
c. The offer price for any Class B Shares required to be purchased by the
Significant Shareholder pursuant to Section 7 of Division B of this Article
Fourth shall be the greatest of (i) the highest price per share paid by the
Significant Shareholder for any Class A Shares or Class B Shares during the six
month period ending on the date such Person or group became a Significant
Shareholder (or such shorter period if the date such Person or group became a
Significant Shareholder is not more than six months following the Effective
Time), (ii) the highest reported sale price of Class A Shares or Class B Shares
on the New York Stock Exchange (or such other securities exchange or quotation
system as is then the principal trading market for such shares) during the 30
day period preceding such Person or group becoming a Significant Shareholder,
and (iii) the highest reported sale price of Class A Shares or Class B Shares
on the New York Stock Exchange (or such other securities exchange or quotation
system as is then the principal trading market for such shares) on the business
day preceding the date the Significant Shareholder makes the tender offer
required by this Section 7 of Division B of this Article Fourth. For purposes
of Section 7(d) of Division B of this Article Fourth, the applicable date for
each calculation required by clauses (i) and (ii) of the preceding sentence
shall be the date on which the Significant Shareholder becomes required to
engage in the Class B Protection Transaction for which such calculation is
required. In the event that the Significant Shareholder has acquired Class A
Shares or Class B Shares in the six month period ending on the date such Person
or group becomes a Significant Shareholder for consideration other than cash,
the value of such consideration per share of Class A Shares shall be as
determined in good faith by the Board of Directors.
d. A Class B Protection Transaction shall also be required to be effected
by any Significant Shareholder each time
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that the Significant Shareholder acquires after the Effective Time beneficial
ownership of additional Class A Shares in an amount equal to or greater than
the next higher integral multiple of 5% in excess of 15% (e.g., 20%, 25%, 30%,
etc.) of the number of outstanding Class A Shares if such Significant
Shareholder does not then own an equal or greater percentage of the Class B
Shares (all of which Class B Shares must have been acquired by such Significant
Shareholder after the Effective Time). Such Significant Shareholder shall be
required to make a public cash tender offer to acquire that number of Class B
Shares prescribed by the formula set forth in Section 7(b) of Division B of
this Article Fourth, and must acquire all shares validly tendered or a pro rata
portion hereof, as specified in such Section 7(b), at the price determined
pursuant to Section 7(c) of Division B of this Article Fourth, even if a
previous Class B Protection Transaction resulted in fewer Class B Shares being
tendered than required in the previous offer.
e. If any Significant Shareholder fails to make an offer required by this
Section 7 of Division B of this Article Fourth, or to purchase shares validly
tendered and not withdrawn (after proration, if any), such Significant
Shareholder shall not be entitled to vote any Class A Shares beneficially owned
by such Significant Shareholder and acquired by such Significant Shareholder
after the Effective Time unless and until such requirements are complied with
or unless and until all Class A Shares causing such offer requirement to be
effective are no longer beneficially owned by such Significant Shareholder. To
the extent that the voting power of any Class A Shares is so suspended, such
shares shall not be included in the determination of aggregate voting shares
for any purpose under these Amended Articles of Incorporation or the Ohio
Revised Code. The requirement to engage in a Class B Protection Transaction is
satisfied by the making of the requisite offer and purchasing validly tendered
shares pursuant to this Section 7 of Division B of this Article Fourth, even if
the number of shares tendered is less than the number of shares included in the
required offer.
f. The Class B Protection Transaction requirement shall not apply to any
increase in percentage beneficial ownership of Class A Shares resulting solely
from a change in the aggregate amount of Class A Shares outstanding, provided
that any acquisition after such change which resulted in any Person or group
beneficially owning fifteen percent (15%) or more of the number of outstanding
Class A Shares (or an additional 5% or more of the number of shares of the
Class A Shares after the last acquisition which triggered the requirement for a
Class B Protection Transaction) shall be subject to any Class B Protection
Transaction requirement that would be imposed pursuant to this Section 7 of
Division B of this Article Fourth.
g. In connection with Sections 7(a) through 7(d) of Division B of this
Article Fourth, the following Class A Shares shall be excluded for the purpose
of determining the Class A Shares
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<PAGE> 12
beneficially owned by such Person or group but not for the purpose of
determining shares outstanding:
(i) shares beneficially owned by such Person or group at the Effective
Time;
(ii) shares acquired by will or by the laws of descent and
distribution, or by gift that is made in good faith and not for the
purpose of circumventing this Section 7 of Division B of Article Fourth or
by foreclosure of a bona fide loan;
(iii) shares acquired upon issuance or sale by the Corporation;
(iv) shares acquired by operation of law (including a merger or
consolidation effected for the purpose of recapitalizing such Person or
reincorporating such Person in another jurisdiction but excluding a merger
or consolidation effected for the purpose of acquiring another Person);
(v) shares acquired in exchange for Class B Shares by a holder of Class
B Shares (or by a parent, lineal descendant or donee of such holder of
Class B Shares who received such Class B Shares from such holder) if the
Class B Shares so exchanged were acquired by such holder directly from the
Corporation as a result of a stock split effected by these Amended
Articles of Incorporation at the Effective Time or any subsequent stock
split or as a dividend on Class A Shares; and
(vi) shares acquired by a plan of the Corporation qualified under
Section 401(a) of the Internal Revenue Code of 1986, as amended, or any
successor provision thereto, or acquired by reason of a distribution from
such a plan.
h. In connection with Sections 7(a) through 7(b) of this Division B of
Article Fourth, for purposes of calculating the number of shares of Class B
Shares beneficially owned by any Persons or group:
(i) Class B Shares acquired by gift shall be deemed to be beneficially
owned by such Person or member of a group if such gift was made in good
faith and not for the purpose of circumventing the operations of this
Section 7 of Division B of this Article Fourth; and
(ii) only Class B Shares owned of record by such Person or member of a
group or held by others
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<PAGE> 13
as nominees of such Person or member of a group and identified
as such to the Corporation shall be deemed to be beneficially owned by
such Person or group (provided that Class B Shares with respect to
which such Person or member of a group has sole investment and voting
power shall be deemed to be beneficially owned thereby).
i. All calculations with respect to percentage beneficial ownership of
either issued and outstanding Class A Shares or Class B Shares will be based
upon the numbers of issued and outstanding shares reflected in either the
records of or a certification from the Corporation's stock transfer agent or
reported by the Corporation on the last to be filed of (i) the Corporation's
most recent Annual Report on Form 10-K, (ii) its most recent Quarterly Report
on Form 10-Q, (iii) its most recent Current Report on Form 8-K, and (iv) its
most recent definitive proxy statement filed with the Securities and Exchange
Commission.
j. For purposes of this Section 7 of Division B of this Article Fourth,
the term "Person" means any individual, partnership, corporation, association,
trust, or other entity (other than the Corporation). Subject to Sections 7(g)
and 7(h) of Division B of this Article Fourth, "beneficial ownership" shall be
determined pursuant to Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or any successor regulation and the
formation or existence of a "group" shall be determined pursuant to Rule
13d-5(b) under the 1934 Act or any successor regulation, subject to the
following qualifications:
(i) relationships by blood or marriage between or among any Persons
will not constitute any of such Persons as a member of a group with such
other Person, absent affirmative attributes of concerted action; and
(ii) any Person acting in his official capacity as a director or officer
of the Corporation shall not be deemed to beneficially own shares where
such ownership exists solely by virtue of such Person's status as a
trustee (or similar position) with respect to shares held by plans or
trusts for the general benefit of employees or former employees of the
Corporation, and actions taken or agreed to be taken by a Person in such
Person's official capacity as an officer or director of the Corporation
will not cause such Person to become a member of a group with any other
Person.
8. CHANGE OF CLASS B SHARES. Each Class B Share (whether or not then
issued) shall be changed automatically into one Class A Share upon the earlier
to occur of (i) at the time the number of outstanding Class A Shares is less
than 10% of the
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<PAGE> 14
aggregate number of outstanding Class A Shares and Class B Shares; or (ii) upon
resolution of the Board of Directors, if as a result of the existence of the
Class B Shares, either the Class A Shares or Class B Shares or both are
excluded from trading on the New York Stock Exchange, the American Stock
Exchange and all other principal national securities exchanges then in use and
are also excluded from quotation on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") - National Market System and
other comparable quotation systems then in use. Upon such change, the total
number of Class A Shares the Corporation shall have authority to issue, shall
be 150,000,000 and the total number of Class B Shares shall be zero (0) and all
references to Class B Shares shall be of no further force or effect. In making
the determination in subparagraphs (i) or (ii), the Board of Directors may
conclusively rely on information and documentation available to it, including
but not limited to, information or certification from its stock transfer agent,
filings made with the Securities and Exchange Commission, any stock exchange,
the National Association of Securities Dealers, Inc., or any other national
quotation system. At the time set forth in (i) or (ii) above, the Class B
Shares shall be deemed changed automatically into shares of Class A Shares and
stock certificates formerly representing Class B Shares shall thereupon and
thereafter be deemed to represent a like number of Class A Shares. The
determination of the Board of Directors that either (i) or (ii) has occurred
shall be conclusive and binding and the change of each Class B Share into one
Class A Share shall remain effective regardless of whether (i) or (ii) has
occurred in fact.
FIFTH: A Director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation as
a vendor, purchaser, employee, agent or otherwise, nor shall any transaction
contract or other act of the Corporation be void or voidable or in any way
affected or invalidate by reason of the fact that any Director or officer, or
any firm in which such Director or officer is a member, or any corporation of
which such Director or officer is a shareholder, Director or officer, is in any
way interested in such transaction, contract or other act, provided the fact
that such officer, Director, firm or corporation is so interested shall be
disclosed or shall be known to the Board of Directors of such members thereof
as shall be present at any meeting of the Board of Directors at which action
upon any such transaction, contract or other act shall be taken; nor shall any
such Director or officer be accountable or responsible to the Corporation for
or in respect of any such transaction, contract or other act of the Corporation
or for any gains or profits realized by him by reason of the fact that he or
any firm of which he is a member of any corporation of which he is a
shareholder, Director or officer is interested in such transaction, contract or
other act; any such Director may be counted in determining the existence of a
quorum at any meeting of the Board of Directors of the Corporation which shall
authorize or take action in respect of any such transaction, contract or other
act, and may vote there at to authorize, ratify or approve any such
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<PAGE> 15
transaction, contract or other act with like force and effect as if he or any
firm of which he is a member or any corporation of which he is a shareholder
Director of officer were not interested in such transaction, contract or other
act.
SIXTH: No holder or any class of shares of the Corporation shall have
any pre-emptive or preferential rights to subscribe to or purchase any shares
of any class of stock of the Corporation, whether now or hereafter authorized
and whether unissued or in the treasury, or any obligations convertible into
shares of any class of stock of the Corporation, at any time issued or sold, or
any rights to subscribe to or purchase any thereof.
SEVENTH: The Board of Directors is hereby authorized to fix and determine
and to vary the amount of working capital of the Corporation, to determine
whether any, and, if any, what part of its surplus, however created or arising,
shall be used or disposed of or declared in dividends, or paid to shareholders,
and, without action by the shareholders, to use and apply such surplus, or any
part thereof, at any time, or from time to time, in the purchase or acquisition
of shares of any one class or combination of classes of shares, voting trust
certificates for shares, bonds, debentures, notes, scrip, warrants,
obligations, evidences of indebtedness of the Corporation or any other
securities of the Corporation, to such extent or amount and in such manner and
upon such price and other terms as the Board of Directors shall deem expedient
without regard to the differences among the classes of shares or other
securities in price and other terms under which shares may be purchased or in
the relative number of shares that may be available for purchase. The Board of
Directors hereby is authorized to fix at any time and from time to time the
amount of consideration for which the Corporation may issue its shares or any
other securities, whether or not greater consideration could be received upon
the issue or sale of the same number of shares of another class.
EIGHTH: Any and every statute of the State of Ohio hereafter enacted
whereby the rights, powers or privileges of corporations or of the shareholders
of corporations organized under the laws of the State of Ohio are increased or
diminished or in any way affected, or whereby effect is given to the action
taken by any number, less than all, of the shareholders of any such
corporation, shall apply to the Corporation and shall be binding not only upon
the Corporation but upon every shareholder of the Corporation to the same
extent as if such statute had been in force at the date of the filing of these
Articles of Incorporation in the office of the Secretary of State.
NINTH: Notwithstanding any provisions of the Ohio Revised Code now or
hereafter in force otherwise requiring for any purpose the vote, consent,
waiver or release of the holders of shares entitling them to exercise
two-thirds, or any other proportion of the voting power of the Corporation or
of any class or classes of shares thereof, such action, unless otherwise
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expressly required by statute or by the Articles of Incorporation, may be taken
by the vote, consent, waiver or release of the holders of shares entitling them
to exercise a majority of the voting power of the Corporation or of such class
or classes.
TENTH: FAIR PRICE OR 80% VOTE PROVISION
1. VOTING REQUIREMENT. Unless both the fair price requirement set forth
in Section 2 and the other conditions set forth in Section 3 have been
satisfied, the affirmative vote of the holders of 80% of all outstanding shares
of the Corporation entitled to vote in elections of Directors, voting together
as a single class, shall be required for the authorization or approval of any
of the following transactions:
(a) MERGER OR CONSOLIDATION. The merger or consolidation of the
Corporation or any of its subsidiaries with or into an Interested Party (as
hereinafter defined).
(b) DISPOSITION OF ASSETS. The sale, lease, pledge, or other
disposition, in one transaction or in a series of transactions from the
Corporation or any of its subsidiaries to an Interested Party, or from an
Interested Party to the Corporation or any of its subsidiaries, of assets
having an aggregate fair market value (as hereinafter defined) of $1,000,000
or more.
(c) ISSUANCE OR TRANSFER OF SECURITIES. The issuance, sale, or other
transfer, in one transaction or in a series of transactions, by the
Corporation or any of its subsidiaries to an Interested Party, or by an
Interested Party to the Corporation or any of its subsidiaries, of
securities for cash or other consideration having an aggregate fair market
value of $1,000,000 or more.
(d) LIQUIDATION OR DISSOLUTION. The liquidation or dissolution of the
Corporation proposed by an Interested Party.
(e) RECLASSIFICATION OR RECAPITALIZATION. The reclassification of
securities, recapitalization of the Corporation or other transaction that
has the effect of increasing the proportionate share of any class of
outstanding securities of the Corporation or any of its subsidiaries
beneficially owned (as hereinafter defined) by an Interested Party or of
otherwise diluting the position of any shareholder of the Corporation in
comparison with the position of an Interested Party.
(f) OTHER TRANSACTIONS. Any other transactions or series of
transactions that is similar in
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purpose or effect to those referred to in clauses (a) through (e) of this
Section 1.
This voting requirement shall apply even though no vote, or a lesser percentage
vote, may be required by law, by any other provision of these Articles of
Incorporation or otherwise. The term "business combination", as used in this
Article, means any of the transactions referred to in clauses (a) through (f)
of this Section 1.
2. FAIR PRICE REQUIREMENT. The fair price requirement will be satisfied
if the consideration to be received in the business combination by the holders
of shares of the Corporation's Common Stock and Serial Preferred Stock, and by
the Corporation or any of its subsidiaries, as the case may be, meets the
following tests:
(a) AMOUNT OF CONSIDERATION TO BE RECEIVED BY SHAREHOLDERS. If any
holder of the shares of the Corporation's Common Stock or Serial Preferred
Stock, other than an Interested Party, is to receive consideration in the
business combination for any of the shares, the aggregate amount of cash and
fair market value of any other consideration to be received per share may not
be less than the sum of --
(1) the greatest of (i) the highest per share price, including
commissions, paid by the Interested Party for any shares of the same
class or series during the two-year period ending on the date of the most
recent purchase by the Interested Party of any such shares, (ii) the
highest sales price reported for shares of the same class or series traded
on a national securities exchange or in the over-the-counter market
during the one-year period preceding the first public announcement of the
proposed business transaction or (iii) in the case of Serial Preferred
Stock, the amount of the per share liquidation preference; plus
(2) interest on the per share price calculated at the rate of ten
percent (10%) per annum, compounded annually from the date the Interested
Party first became an Interested Party until the business combination is
consummated, less the per share amount of cash dividends payable to holders
of record on record dates in the interim, up to the amount of such
interest.
For purposes of this clause (a) per share amounts will be adjusted for any
stock dividend, stock split or similar transaction.
(b) FORM OF CONSIDERATION TO BE RECEIVED BY SHAREHOLDERS. The
consideration to be received by holders of shares of the Corporation's Common
Stock of Serial Preferred Stock must be in cash or in the same form as was
previously paid by the Interested Party for shares of the same class or series;
if the Interested Party previously paid for such shares with different
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forms of consideration, the consideration to be received by the holders of the
shares must be in cash or in the same form as was previously paid by the
Interested Party for the largest number of shares previously acquired by it.
The provisions of this clause (b) are not intended to diminish the aggregate
amount of cash and fair market value of any other consideration that any holder
of shares of the Corporation's Common Stock or Serial Preferred Stock is
otherwise entitled to receive upon the liquidation or dissolution of the
Corporation, under the terms of any contract with the Corporation or an
Interest Party, or otherwise.
(c) CONSIDERATION TO BE RECEIVED BY THE CORPORATION OR ANY OF ITS
SUBSIDIARIES. If the Corporation or any of its subsidiaries is to receive
consideration in the business combination, the consideration to be received
must be fair to the Corporation or its subsidiaries, as determined by the
continuing directors (as hereinafter defined).
3. OTHER CONDITIONS. The other conditions will be satisfied if, from the
time the Interested Party became an Interested Party until the completion of
the business combination, each of the following has at all times been and
continues to be true:
(a) CONTINUING DIRECTORS. The Corporation's Board of Directors has
included at least five continuing directors. The term "continuing
director," used in this Article, means an individual who (i) either
was a director of the Corporation at the time the Interested Party
became an Interested Party or was subsequently nominated or elected by
the other continuing directors and (ii) is not an affiliate or
associate (as hereinafter defined) of the Interested Party. All
actions required or permitted to be taken by the continuing directors
under this Article shall be taken by the unanimous written consent of
all continuing directors or by the vote of a majority of the
continuing directors at a meeting convened upon such notice as would
be required for a meeting of the full Board of Directors.
(b) NO ACQUISITION OF ADDITIONAL SHARES. The Interested Party has
not become the beneficial owner (as hereinafter defined) of any
additional shares of Common Stock or Serial Preferred Stock of the
Corporation, except (i) as part of the transaction that resulted in
the Interested Party becoming an Interested Party, (ii) upon
conversion of securities previously acquired by it or (iii) pursuant
to a stock dividend or stock split.
(c) NO SPECIAL BENEFITS TO THE INTERESTED SHAREHOLDER. The
Interested Party has not received, directly or indirectly, the benefit
(except proportionately as a shareholder) of any loan, advance,
guaranty, pledge, or other
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financial assistance, tax credit or deduction or other benefit from the
Corporation or any of its subsidiaries.
(d) PROXY STATEMENT. A proxy or information statement describing the
business combination and complying with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations under it (or
any subsequent provisions replacing that Act and the rules and regulations
under it) has been mailed at least 30 days prior to the completion of the
business combination to the holders of all outstanding shares of the
Corporation entitled to vote in election of Directors, whether or not
shareholder approval of the business combination is required. If deemed
advisable by the continuing directors, the proxy or information statement
shall contain a recommendation by the continuing directors as to the
advisability (or inadvisability) of the business combination and/or an
opinion by an investment banking firm, selected by the continuing directors
and retained at the expense of the Corporation, as to the fairness (or
unfairness) of the business combination to holders of shares of the
Corporation's Common Stock or Serial Preferred Stock other than the
Interested Party.
(e) NO OMISSION OR REDUCTION OF DIVIDENDS. Except to the extent approved
by the continuing directors, there has been no (i) failure to pay in full,
when and as due, any dividends on the Corporation's Serial Preferred Stock or
(ii) failure to pay or reduction in the annual rate of dividends on the
shares of the Corporation's Common Stock, whether directly or indirectly
through a reclassification, recapitalization or otherwise.
(f) NO CHANGE IN BUSINESS OR CAPITAL STRUCTURE. Except to the extent
approved by the continuing directors, there has been no material change in
(i) the nature of the business conducted by the Corporation and its
subsidiaries or (ii) the capital structure of the Corporation, including but
not limited to any change in the number of outstanding shares of Common
Stock, the number and series of any outstanding shares of Serial Preferred
Stock and the types and aggregate principal amount of any outstanding debt
securities, except for changes resulting from the exercise of previously
issued options, warrants or other rights, the conversion of previously issued
shares, the issuance of previously authorized debt securities and the
mandatory redemption or retirement of debt securities in accordance with
their terms.
4. DEFINITIONS: As used in this Article TENTH:
(a) "AFFILIATE"; "ASSOCIATE". The terms "affiliate" and "associate" have
the meanings ascribed to them in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on May 4,
1984.
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(b) "BENEFICIAL OWNERSHIP". A person or entity is deemed to
"beneficially own" shares if, directly or indirectly through any contract,
understanding, arrangement, relationship or otherwise, that person or entity
has or shares (i) the power to vote or to dispose, or to direct the voting or
disposition, of the shares or (ii) the right to acquire the shares pursuant
to any contract or arrangement, upon the exercise of any option, warrant or
right, upon the conversion of any other shares, upon revocation of a trust or
otherwise. The person or entity is also deemed to "beneficially own" shares
that are beneficially owned by affiliates and associates of that person or
entity.
(c) "BUSINESS COMBINATION". The term "business combination" has the
meaning ascribed to it in Section 1 of this Article.
(d) "CONTINUING DIRECTORS". The term "continuing directors" has the
meaning ascribed to it in clause (a) of Section 3 of this Article.
(e) "FAIR MARKET VALUE". The term "fair market value" means (i), in the
case of securities listed on a national securities exchange or on the
National Association of Securities Dealers, Inc.'s National Market, the
highest closing sales price reported during the 30-day period immediately
preceding the date in question for securities of the same class or series
traded on such exchange or market, or, if such securities are not listed on
any exchange or such National Market, the highest closing bid quotation with
respect to such securities during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automatic
Quotation System or any system then in use, or, if no quotations are
available, the value determined by the continuing directors, and (ii) in the
case of other securities and of consideration other than securities or cash,
the value determined by the continuing directors.
(f) "INTERESTED PARTY". The term "Interested Party" means any person or
entity that, together with its affiliates and associates, is at the time of,
or has been within the two-year period immediately prior to, the consummation
of a business combination the beneficial owner of shares having at least 20%
of the aggregate voting power of all outstanding shares of the Corporation
entitled to vote in elections of Directors. The term "Interested Party," for
purposes of the requirements and conditions of this Article, also includes
the affiliates and associates of the Interested Party. Notwithstanding the
foregoing, the Corporation and its subsidiaries, and any profit-sharing,
employee stock ownership, employee pension, or other employee benefit plan of
the Corporation or any subsidiary, are not deemed to be "Interested Parties".
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5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED PARTY. Nothing
contained in this Article shall be construed to relieve any Interested Party
from any fiduciary obligations imposed by law.
6. AMENDMENT, REPEAL, ETC. Notwithstanding any other provision of these
Amended Articles of Incorporation or the Regulations of the Corporation (and
notwithstanding the fact that a lesser percentage may be required by law, these
Amended Articles of Incorporation or the Regulations of the Corporation), the
affirmative vote of the holders of 80% of the outstanding shares of the
Corporation entitled to vote in elections of Directors, voting together as a
single class, shall be required to amend or repeal, or adopt any provisions
inconsistent with, this Article Tenth.
ELEVENTH: These Amended Articles supersede the existing Articles of
Incorporation of the Corporation and any and all subsequent amendments thereto.
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