Common use of Amendment to Articles of Incorporation Clause in Contracts

Amendment to Articles of Incorporation. So long as the Ownership Cap is 18% or more, the Company will propose, and the Board shall recommend for adoption by the shareholders of the Company, no later than the first annual meeting of shareholders following the end of the Company Buy Back Period (or such earlier time as the Total Ownership Percentage of the Investor Group shall equal the Ownership Cap), and no less frequently than each annual meeting thereafter until the Reclassification Amendment (as hereinafter defined) is adopted, an amendment (the "Reclassification Amendment") to the Articles of Incorporation of the Company providing for, and only for, (a) the authorization of a new class of common stock (in addition to the Common Stock) to be designated as the Class B Common Stock and consisting of the same number of authorized shares as the number of authorized shares of Series A Convertible Preferred Stock and which Class B Common Stock shall, as to each share, have the identical rights, powers and preferences (including as to dividends, voting rights, liquidation preference, restriction on transfer, adjustment and conversion) as pertains to each share of Series A Convertible Preferred Stock and (b) upon the adoption and effectiveness of the Reclassification Amendment, the automatic reclassification of each outstanding share of Series A Convertible Preferred Stock into one validly issued and fully paid share of Class B Common Stock (whereupon, all references to the Series A Convertible Preferred Stock in this Agreement shall thereafter mean and refer to the corresponding number of shares of Class B Common Stock). In connection with each meeting of the Company's shareholders at which the Reclassification Amendment is submitted for approval of the Company's shareholders, the Company shall use its commercially reasonable efforts to cause the adoption of the Reclassification Amendment by the shareholders of the Company, including soliciting proxies in favor of the adoption of the Reclassification Amendment by the shareholders of the Company. If, after the date of the fifth annual meeting of the Company's shareholders following the end of the Company Buy-Back Period, (x) the Reclassification Amendment shall not have been approved by the shareholders of the Company, and (y) the Investor shall have been advised in writing by its regular independent public accounting firm that unless the shares of Series A Convertible Preferred Stock owned by the Investor Group are converted into Common Stock in accordance with this Section 8.8, such firm cannot deliver its opinion that the Investor is entitled to account for its investment in the Company on the full equity accounting method (including earnings and investments) (other than, in any such case referred to in this clause (y), as a result of the failure of the Investor to fully exercise its rights under this Agreement, including its rights to acquire Voting Securities hereunder (but assuming for purposes hereof that the Investor owned Voting Securities equal to the then applicable Ownership Cap) or to designate Investor Nominees for election or appointment to the Board or to have such Board members participate as Board members in the management of the business and affairs of the Company), then, at the written request of the Investor, both parties will use commercially reasonable efforts to seek approval of the Commission or its staff that would permit the Investor to account (or, if such accounting has theretofore been allowed, to permit the Investor to continue to account) for its investment in the Company on the full equity accounting method (including earnings and investments) without the conversion of the Series A Convertible Preferred Stock owned by the Investor into Common Stock on the terms set forth below. If the Commission or its staff shall not have approved such accounting within six months after the Investor's written request referred to above, the Investor shall have the option (the "Optional Conversion Right"), which shall be exercisable by the Investor by delivering written notice to the Company within 30 days after the end of such six month period, to convert all of the Series A Convertible Preferred Stock owned by the Investor Group into Common Stock as set forth in Section 6(a)(iii) of the Certificate of Designation for the Series A Convertible Preferred Stock. All Common Stock issued to the Investor Group upon exercise of the Optional Conversion Right, together with all other shares of Common Stock thereafter acquired by the Investor pursuant to the Agreement, shall immediately upon each acquisition thereof, be deposited by the Investor Group into a permanent voting trust in accordance with applicable Law (the "Voting Trust") pursuant to a perpetual voting trust agreement in a form reasonably satisfactory to the Company, and, with respect to matters contained therein which are not specifically contemplated hereby, in a form reasonably satisfactory to the Investor, and with an independent trust company, commercial bank or other financial institution reasonably satisfactory to the Company and the Investor designated as voting trustee (the "Voting Trustee"). Pursuant to such Voting Trust, the aggregate number of Votes as the Investor Group would from time to time have been able to vote if the Investor had not exercised the Optional Conversion Right and continued to own the Series A Convertible Preferred Stock will be voted by the Voting Trustee at the direction of the Investor consistent with how such Votes could have been voted under this Agreement if the Optional Conversion Right had not been exercised, and the balance of the Votes attributable to all shares of Common Stock deposited in the Voting Trust shall be voted by the Voting Trustee pro rata in accordance with the votes of all shareholders of the Company other than the members of the Investor Group and the Other Investor Affiliates. The Voting Trust shall provide for the release and delivery to the Investor of shares of Common Stock, free of the restrictions of the Voting Trust, and the termination of the provisions thereof with respect to shares of Common Stock, upon transfer of such shares by the Investor to unaffiliated parties in accordance with the provisions of this Agreement. The parties hereto hereby agree to enter into arrangements to permit the timely tender into a tender or exchange offer of Common Stock subject to the Voting Trust in a manner similar to that applied to the Series A Convertible Preferred Stock. There shall not be any obligation to deliver any shares of Common Stock to the Voting Trust, and the Voting Trust shall immediately terminate if it has already been established, at such time as all outstanding shares of Common Stock (or such securities as the Common Stock has been converted into) has the same votes per share if any, as all other such shares or other securities, without any "time phased" voting.