Exhibit 2.2
EXECUTION VERSION
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
Amendment No. 1, dated as of November 30, 2001 (this "Amendment"), to
the Agreement and Plan of Merger, dated as of October 9, 2001 (the "Merger
Agreement"), by and among The Procter & Xxxxxx Company, an Ohio corporation
("P&G"), The Procter & Xxxxxx Ohio Brands Company, an Ohio corporation and a
wholly owned subsidiary of P&G ("Newco"), and The X. X. Xxxxxxx Company, an Ohio
corporation ("JMS").
WHEREAS, P&G, Newco and JMS wish to amend the Merger Agreement pursuant
to and in accordance with Section 9.02 of the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing premise and of the
mutual agreements herein contained, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Section 2.03 of the Merger Agreement is hereby amended and
restated in its entirety as follows:
"ARTICLES OF INCORPORATION AND CODE OF REGULATIONS. The articles of
incorporation of the Surviving Corporation as of the Effective Time
shall be in the form of the articles of incorporation attached hereto
as SCHEDULE 2.03. The regulations of the Surviving Corporation as of
the Effective Time shall be in the form of the regulations of JMS as in
effect as of the date hereof."
2. Clause (iii) of Section 6.02(c) of the Merger Agreement is
hereby amended and restated in its entirety as follows:
"(iii) declare, set aside, make or pay any dividends or other
distribution, payable in cash, stock, property or otherwise,
with respect to any of its capital stock (other than (i)
regular quarterly cash dividends in respect of JMS Common
Stock declared and paid in the ordinary course and
consistent with past practice and at a rate not in excess of
$0.64 per annum per share and (ii) dividends payable by a
wholly-owned Subsidiary of JMS to JMS or another
wholly-owned Subsidiary), or enter any agreement with
respect to the voting of its capital stock, issue or
authorize the issuance of any shares of its capital stock
(other than in connection with the exercise of currently
outstanding stock options for JMS Common Stock) or any other
securities exercisable or exchangeable for or convertible
into shares of its capital stock, or repurchase, redeem,
purchase or otherwise acquire for value any shares of its
capital stock or any other securities exercisable or
exchangeable for or convertible into shares of its capital
stock."
3. Schedule 2.03 to the Merger Agreement shall be in the form
attached as ANNEX A to this Amendment.
4. The Merger Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect.
5. This Amendment may be executed in one or more counterparts,
each of which will be deemed to be an original, but all of which will constitute
one agreement.
6. This Amendment shall be governed by and construed in
accordance with the laws of the state of Ohio, whether common law or statutory,
without reference to the choice of law provisions thereof.
7. This Amendment shall be effective immediately and all
references to the Merger Agreement shall, from and after such time, be deemed to
be references to the Merger Agreement as amended by this Amendment.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the signatories hereto has caused this
Amendment to be signed by their respective duly authorized officers as of the
date first above written.
THE PROCTER & XXXXXX COMPANY
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
THE PROCTER & XXXXXX OHIO BRANDS COMPANY
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
THE X. X. XXXXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President - Finance and
Administration, Secretary, and
General Counsel
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ANNEX A
AMENDED
ARTICLES OF INCORPORATION
OF
THE X. X. XXXXXXX COMPANY
FIRST. The name of the Company is The X. X. Xxxxxxx Company.
SECOND. The place in Ohio where its principal office is located is the
City of Orrville, in Xxxxx County.
THIRD. The purpose or purposes of the Company are:
(a) To manufacture, preserve, can, pack, purchase, sell, import,
export, store, hold, use, distribute, transport, and deal in and with food
products, food by-products, and containers therefor;
(b) To manufacture, to purchase, lease, or otherwise acquire, to hold
and use, to sell, lease, or otherwise dispose of, and to deal in or with
personal property of any description and any interest therein;
(c) To purchase, lease, or otherwise acquire, to invest in, hold, use,
and encumber, to sell, lease, exchange, transfer, or otherwise dispose of,
and to construct, develop, improve, equip, maintain, and operate structures
and real property of any description and any interest therein;
(d) To borrow money, to issue, sell, and pledge its notes, bonds, and
other evidences of indebtedness, to secure any of its obligations by
mortgage, pledge, or deed of trust of all or any of its property, and to
guarantee and secure obligations of any person, all to the extent
necessary, useful, or conducive to carrying out any of the purposes of the
Company;
(e) To invest its funds in any shares or other securities of another
corporation, business, or undertaking or of a government, governmental
authority, or governmental subdivision; and
(f) To do whatever is deemed necessary, useful, or conducive to
carrying out any of the purposes of the Company and to exercise all other
authority enjoyed by corporations generally by virtue of the provisions of
Chapter 1701 of the Ohio Revised Code.
Fourth. The authorized number of shares of the Company is 156,000,000
consisting of 6,000,000 serial preferred shares without par value ("Serial
Preferred Shares") and 150,000,000 common shares without par value ("Common
Shares"). This Article Fourth may be amended by the Board of Directors without
shareholder approval as permitted by Chapter 1701 of the Ohio Revised Code, as
it may be amended from time to time.
DIVISION I
EXPRESS TERMS OF SERIAL PREFERRED SHARES
The Serial Preferred Shares may be issued from time to time in 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; and all Serial Preferred Shares of all
series shall rank equally and shall be identical, except that there may be
variations in respect of the dividend rate, the dates of payment of dividends
and the dates from which they are cumulative, redemption rights and price,
sinking fund requirements, conversion rights, liquidation price, and
restrictions on the issuance of shares of the same series or of any other class
or series. Subject to the requirement that all Serial Preferred Shares shall be
identical in respect of voting rights and rights of alteration of express terms,
the Board of Directors, without any further action by the shareholders, may, at
any time and from time to time, adopt an amendment or amendments to these
Amended Articles of Incorporation, or adopt further Amended Articles of
Incorporation, in respect of any Serial Preferred Shares that constitute
unissued or treasury
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shares at the time of such adoption for the purpose of dividing any or all of
such Serial Preferred Shares into such series as the Board of Directors shall
determine and fix the express terms of any such series of Serial Preferred
Shares, which may include statements specifying:
(a) Dividend rights, which may be cumulative or non-cumulative, at a
specified rate, amount, or proportion, with or without further
participation rights, and in preference to, junior to, or on a parity in
whole or in part with dividend rights of shares of any other class or
series;
(b) Redemption rights and price;
(c) Sinking fund requirements, which may require the Company to
provide a sinking fund out of earnings or otherwise for the purchase or
redemption of such shares or for dividends thereon;
(d) Voting rights, which may be full, limited or denied, except as
otherwise required by law;
(e) Conversion rights;
(f) Liquidation rights, preferences, and price; and
(g) Restrictions on the issuance of shares of any class or series of
the Company.
DIVISION I-A
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
SECTION 1. There is established hereby a series of Serial Preferred Shares
that shall be designated Series A Junior Participating Preferred Shares
(hereinafter sometimes called this "Series" or the "Series A Junior
Participating Preferred Shares") and that shall have the terms set forth in this
Division I-A.
SECTION 2. The number of shares of this Series shall be 1,500,000.
SECTION 3. (a) The holders of record of Series A Junior Participating
Preferred Shares shall be entitled to receive, when and as declared by the
Directors in accordance with the terms hereof, out of funds legally available
for the purpose, cumulative quarterly dividends payable in cash on the first day
of March, June, September, and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a Series A
Junior Participating Preferred Share or fraction of a Series A Junior
Participating Preferred Share. Such quarterly dividend payments shall be in an
amount per share (rounded to the nearest cent) equal to the greater of (i) $1.00
per share or (ii) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends, plus 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions (other than a dividend payable in Common Shares, or a
subdivision of the outstanding Common Shares (by reclassification or
otherwise)), declared on the Common Shares since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any Series A Junior
Participating Preferred Share or fraction of a Series A Junior Participating
Preferred Share. In the event the Company shall at any time declare or pay any
dividend on the Common Shares payable in Common Shares, or effect a subdivision
or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
amount to which holders of Series A Junior Participating Preferred Shares were
entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on outstanding Series
A Junior Participating Preferred Shares from the Quarterly Dividend Payment Date
next preceding the date of issue of such Series A Junior Participating Preferred
Shares, unless (i) the date of issue of such shares is prior to the
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record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or (ii) the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Junior Participating Preferred Shares entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. No dividends
shall be paid upon or declared and set apart for any Series A Junior
Participating Preferred Shares for any dividend period unless at the same time a
dividend for the same dividend period, ratably in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared and set
apart for all Serial Preferred Shares of all series then outstanding and
entitled to receive such dividend. The Directors may fix a record date for the
determination of holders of Series A Junior Participating Preferred Shares
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 40 days prior to the date fixed for the
payment thereof.
SECTION 4. The Series A Junior Participating Preferred Shares are not
redeemable.
SECTION 5. (a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company (hereinafter referred to
as a "Liquidation"), no distribution shall be made to the holders of shares
ranking junior (either as to dividends or upon Liquidation) to the Series A
Junior Participating Preferred Shares, unless, prior thereto, the holders of
Series A Junior Participating Preferred Shares shall have received at least an
amount per share equal to one hundred times the then applicable Purchase Price
as defined in the Rights Agreement, dated as of April 22, 1999 between the
Company and Xxxxxx Trust and Savings Bank, as the same may be from time to time
amended in accordance with its terms (which Purchase Price is $90.00 as of April
22, 1999), subject to adjustment from time to time as provided in the Rights
Agreement, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the date of such
payment; provided that the holders of Series A Junior Participating Preferred
Shares shall be entitled to receive at least an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Shares (the "Series A Junior Participating Preferred Shares Liquidation
Preference").
(b) In the event, however, that the net assets of the Company are not
sufficient to pay in full the amount of the Series A Junior Participating
Preferred Shares Liquidation Preference and the liquidation preferences of all
other series of Serial Preferred Shares, if any, which rank on a parity with the
Series A Junior Participating Preferred Shares as to distribution of assets in
Liquidation, all shares of this Series and of such other series of Serial
Preferred Shares shall share ratably in the distribution of assets (or proceeds
thereof) in Liquidation in proportion to the full amounts to which they are
respectively entitled.
(c) In the event the Company shall at any time declare or pay any dividend
on the Common Shares payable in consolidation of the outstanding Common Shares
(by reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such case
the amount to which holders of Series A Junior Participating Preferred Shares
were entitled immediately prior to such event pursuant to the proviso set forth
in paragraph (a) above, shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
(d) The merger or consolidation of the Company into or with any other
corporation, or the merger of any other corporation into it, or the sale, lease
or conveyance of all or substantially all the property or business of the
Company, shall not be deemed to be a Liquidation for the purpose of this Section
5.
SECTION 6. The Series A Junior Participating Preferred Shares shall not be
convertible into Common Shares.
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DIVISION II
EXPRESS TERMS OF COMMON SHARES
SECTION 1. Except as expressly set forth in Section 2 of this Division II,
each outstanding Common Share shall entitle the holder thereof to one vote on
each matter properly submitted to the shareholders for their vote, consent,
waiver, release, or other action, including any vote or consent for the election
or removal of directors.
SECTION 2. (a) Notwithstanding Section 1 of this Division II, each
outstanding Common Share shall entitle the holder thereof to ten votes on each
of the following matters properly submitted to the shareholders to the extent
such matters (x) are required under the Ohio Revised Code, any provisions of
these Amended Articles of Incorporation or the Regulations of the Company or
applicable stock exchange rules, to be submitted to the shareholders for their
vote, consent, waiver or other action or (y) are submitted or presented to the
shareholders for their vote, consent waiver or other action: (1) any matter that
relates to or would result in the dissolution or liquidation of the Company,
whether voluntary or involuntary, and whether pursuant to Section 1701.86 or
1701.91 of the Ohio Revised Code or otherwise, (2) the adoption of any amendment
to these Amended Articles of Incorporation, or the Regulations of the Company,
or the adoption of Amended Articles of Incorporation, other than the adoption of
any amendment or Amended Articles of Incorporation that increases the number of
votes to which holders of Common Shares are entitled or expand the matters to
which this Section 2(a) applies, (3) any proposal or other action to be taken by
the shareholders of the Company, whether or not proposed by the shareholders of
the Company, and whether proposed by authority of the Board of Directors or
otherwise, relating to the Rights Agreement, dated as of April 22, 1999, as
amended on August 28, 2000, and as it may be further amended from time to time
pursuant to its terms, or any successor plan, (4) any matter relating to any
stock option plan, stock purchase plan, executive compensation plan, executive
benefit plan, or other similar plan, arrangement or agreement, (5) adoption of
any agreement or plan of or for the merger, consolidation, or majority share
acquisition of the Company or any subsidiary with or into any other person,
whether domestic or foreign, corporate, or noncorporate, or the authorization of
the lease, sale, exchange, transfer or other disposition of all, or
substantially all, of the Company's assets, (6) any matter submitted to the
shareholders pursuant to Article Fifth or Article Seventh of these Amended
Articles of Incorporation, as they may be further amended, or any issuance of
shares of the Company for which shareholder approval is required by applicable
stock exchange rules or (7) any matter relating to the issuance of shares of the
Company, or the repurchase of shares of the Company that the Board of Directors
determines is required or appropriate to be submitted to the shareholders under
the Ohio Revised Code or applicable stock exchange rules, except that:
(i) no holder of Common Shares shall be entitled to exercise more than
one vote on any such matter in respect of any Common Share with respect to
which there has been a change in beneficial ownership following the
Effective Time of the Merger (as such terms are defined in the Agreement
and Plan of Merger, dated as of October 9, 2001, as it may be amended from
time to time (the "Merger Agreement"), by and among The Procter & Xxxxxx
Company, The Procter & Xxxxxx Ohio Brands Company and the Company) and
during the four years immediately preceding the date on which a
determination is made of the shareholders who are entitled to take any such
action; and
(ii) no holder shall be entitled to exercise more than one vote on any
such matter in respect of any Common Share if the aggregate voting power
such holder otherwise would be entitled to exercise as of the date of such
a determination (disregarding the voting power of any Common Shares held by
such holder on August 20, 1985 or acquired by such holder in a transaction
not involving any change in beneficial ownership by reason of Section 2 (c)
of this Division II) would constitute one-fifth or more of the voting power
of the Company and the holders of the Common Shares have not authorized the
ownership of Common Shares by such person as and to the extent contemplated
by Article Seventh hereof.
(b) A change in beneficial ownership of an outstanding Common Share shall
be deemed to have occurred whenever a change occurs in any person or group of
persons who, directly or indirectly, through
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any contract, arrangement, understanding, relationship or otherwise has or
shares (1) voting power, which includes the power to vote, or to direct the
voting of such Common Share, (2) investment power, which includes the power to
direct the sale or other disposition of such Common Share, (3) the right to
receive or retain the proceeds of any sale or other disposition of such Common
Share, or (4) the right to receive any distributions, including cash dividends,
in respect of such Common Share.
(A) In the absence of proof to the contrary provided in accordance
with the procedures referred to in Section 2 (d) of this Division II, a
change in beneficial ownership shall be deemed to have occurred whenever a
Common Share is transferred of record into the name of any other person.
(B) In the case of a Common Share held of record in the name of a
corporation, general partnership, limited partnership, voting trustee,
bank, trust company, broker, nominee or clearing agency, if it has not been
established pursuant to the procedures referred to in Section 2 (d) of this
Division II that there has been no change in the person or persons who
direct the exercise of the rights referred to in clauses (b)(1) through
(b)(4) of Section 2 of this Division II with respect to such Common Share
during the period of four years immediately preceding the date on which a
determination is made of the shareholders who are entitled to take any
action, then a change in beneficial ownership shall be deemed to have
occurred during such period.
(C) In the case of a Common Share held of record in the name of any
person as a trustee, agent, guardian or custodian under the Uniform Gifts
to Minors Act as in effect in any state, a change in beneficial ownership
shall be deemed to have occurred whenever there is a change in the
beneficiary of such trust, the principal of such agent, the xxxx of such
guardian or the minor for whom such custodian is acting or in such trustee,
agent, guardian or custodian.
(D) In the case of Common Shares beneficially owned by a person or
group of persons who, after acquiring directly or indirectly the beneficial
ownership of five percent of the outstanding Common Shares, failed to
notify the Company of such ownership, a change in beneficial ownership of
such Common Shares shall be deemed to occur on each day while such failure
continues.
(c) Notwithstanding anything in this Section 2 of this Division II to the
contrary, no change in beneficial ownership shall be deemed to have occurred
solely as a result of:
(1) any event that occurred prior to August 20, 1985 or pursuant to
the terms of any contract (other than a contract for the purchase and sale
of Common Shares contemplating prompt settlement), including contracts
providing for options, rights of first refusal and similar arrangements in
existence on such date to which any holder of Common Shares is a party;
(2) any transfer of any interest in a Common Share pursuant to a
bequest or inheritance, by operation of law upon the death of any
individual, or by any other transfer without valuable consideration,
including a gift that is made in good faith and not for the purpose of
circumventing this Article Fourth;
(3) any change in the beneficiary of any trust, or any distribution of
a Common Share from trust, by reason of the birth, death, marriage or
divorce of any natural person, the adoption of any natural person prior to
age 18 or the passage of a given period of time or the attainment by any
natural person of a specific age, or the creation or termination of any
guardianship or custodial arrangement;
(4) any appointment of a successor trustee, agent, guardian or
custodian with respect to a Common Share if neither such successor has nor
its predecessor had the power to vote or to dispose of such Common Share
without further instructions from others;
(5) any change in the person to whom dividends or other distributions
in respect of a Common Share are to be paid pursuant to the issuance or
modification of a revocable dividend payment order; or
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(6) any issuance of a Common Share by the Company or any transfer by
the Company of a Common Share held in treasury unless otherwise determined
by the Board of Directors at the time of authorizing such issuance, or
transfer, including without limitation those Common Shares issued pursuant
to the Merger Agreement.
(d) For purposes of Section 2 of this Division II, all determinations
concerning changes in beneficial ownership, or the absence of any such change,
shall be made by the Company or, at any time when a transfer agent is acting
with respect to the Common Shares, by such transfer agent on the Company's
behalf. Written procedures designed to facilitate such determinations shall be
established by the Company and refined from time to time. Such procedures shall
provide, among other things, the manner of proof of facts that will be accepted
and the frequency with which such proof may be required to be renewed. The
Company and any transfer agent shall be entitled to rely on all information
concerning beneficial ownership of the Common Shares coming to their attention
from any source and in any manner reasonably deemed by them to be reliable, but
neither the Company nor any transfer agent shall be charged with any other
knowledge concerning the beneficial ownership of the Common Shares.
(e) In the event of any stock split or stock dividend with respect to the
Common Shares, each Common Share acquired by reason of such split or dividend
shall be deemed to have been beneficially owned by the same person continuously
from the same date as that on which beneficial ownership of the Common Share,
with respect to which such Common Share was distributed, was acquired.
SECTION 3. No reference to any matter in this Division II shall be deemed
to entitle any shareholder of the Company the right to vote thereon, consent
thereto, grant a waiver or release in respect thereof, or take any other action
with respect thereto.
SECTION 4. Each Common Share, whether at any particular time the holder
thereof is entitled to exercise ten votes or one vote pursuant to Section 2 of
this Division II, shall be identical to all other Common Shares in all respects,
and together the Common Shares shall constitute a single class of shares of the
Company.
FIFTH. (a) Unless the conditions set forth in clauses (1) through (4) of
this paragraph (a) are satisfied, the affirmative vote of the holders of 85% of
all shares of the Company entitled to vote in elections of Directors, considered
for the purposes of this Article Fifth as one class, shall be required for the
adoption or authorization of a business combination (as hereinafter defined)
with any other entity (as hereinafter defined) if, as of the record date for the
determination of shareholders entitled to notice thereof and to vote thereon,
the other entity is the beneficial owner, directly or indirectly, of more than
30% of the outstanding shares of the Company entitled to vote in elections of
Directors, considered for the purposes of this Article Fifth as one class. The
85% voting requirement set forth in the foregoing sentence shall not be
applicable if:
(1) The cash, or fair market value of other consideration, to be
received per share by holders of Common Shares of the Company in the
business combination is at least an amount equal to (A) the highest per
share price paid by the other entity in acquiring any of its holdings of
the Common Shares of the Company plus (B) the aggregate amount, if any, by
which 5% per annum of the per share price exceeds the aggregate amount of
all dividends paid in cash, in each case since the date on which the other
entity acquired the 30% interest;
(2) After the other entity has acquired a 30% interest and prior to
the consummation of the business combination: (A) the other entity shall
have taken steps to ensure that the Company's Board of Directors included
at all times representation by continuing director(s) (as hereinafter
defined) proportionate to the shareholdings of the public holders of Common
Shares of the Company not affiliated with the other entity (with a
continuing director to occupy any resulting fractional board position); (B)
the other entity shall not have acquired any newly issued shares, directly
or indirectly, from the Company (except upon conversion of convertible
securities acquired by it prior to obtaining a 30% interest or as a result
of a pro rata share dividend or share split); and (C) the other entity
shall not have acquired any additional outstanding Common Shares of the
Company or securities
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convertible into Common Shares except as a part of the transaction that
resulted in the other entity's acquiring its 30% interest;
(3) The other entity shall not have (A) received the benefit, directly
or indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges, or other financial assistance or tax credits
provided by the Company or (B) made any major change in the Company's
business or equity capital structure without in either case the approval of
at least a majority of all the directors and at least two-thirds of the
continuing directors, in either case prior to the consummation of the
business combination; and
(4) A proxy statement responsive to the requirements of the Securities
Exchange Act of 1934 shall have been mailed to public shareholders of the
Company for the purpose of soliciting shareholder approval of the business
combination and shall have contained at the front thereof, in a prominent
place, any recommendations as to the advisability (or inadvisability) of
the business combination that the continuing directors, or any of them, may
choose to state and, if deemed advisable by a majority of the continuing
directors, an opinion of a reputable investment banking firm as to the
fairness (or not) of the terms of the business combination, from the point
of view of the remaining public shareholders of the Company (the investment
banking firm to be selected by a majority of the continuing directors and
to be paid a reasonable fee for their services by the Company upon receipt
of the opinion).
The provisions of this Article Fifth shall also apply to a business combination
with any other entity that at any time has been the beneficial owner, directly
or indirectly, of more than 30% of the outstanding shares of the Company
entitled to vote in elections of Directors, considered for the purposes of this
Article Fifth as one class, notwithstanding the fact that the other entity has
reduced its shareholdings below 30% if, as of the record date for the
determination of shareholders entitled to notice of and to vote on the business
combination, the other entity is an "affiliate" of the Company (as hereinafter
defined).
(b) As used in this Article Fifth, (1) the term "other entity" shall
include any corporation, person, or other entity and any other entity with which
it or its "affiliate" or "associate" (as defined below) has any agreement,
arrangement, or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting, or disposing of shares of the Company, or that is
its "affiliate" or "associate" as those terms are defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934,
together with the successors and assigns of those persons in any transaction or
series of transactions not involving a public offering of the Company's shares
within the meaning of the Securities Act of 1933; (2) another entity shall be
deemed to be the beneficial owner of any shares of the Company that the other
entity (as defined above) has the right to acquire pursuant to any agreement or
upon exercise of conversion rights, warrants, or options, or otherwise; (3) the
outstanding shares of any class of the Company shall include shares deemed owned
through application of clause (2) above but shall not include any other shares
that may be issuable pursuant to any agreement or upon exercise of conversion
rights, warrants, or options, or otherwise; (4) the term "business combination"
shall include (A) the sale, exchange, lease, transfer, or other disposition by
the Company of all, or substantially all, of its assets or business to any other
entity, (B) the consolidation of the Company with or its merger into any other
entity, (C) the merger into the Company of any other entity, and (D) a
"combination" or "majority share acquisition" in which the Company is the
"acquiring corporation" (as those terms are defined in Section 1701.01 of the
Ohio Revised Code or any similar provision hereafter enacted) and its voting
shares are issued or transferred to any other entity or to shareholders of any
other entity, and the term "business combination" shall also include any
agreement, contract, or other arrangement with another entity providing for any
of the transactions described in (A) through (D) of this clause (4); (5) the
term "continuing director" shall mean either a person who was a member of the
Board of Directors of the Company elected by the public shareholders prior to
the time when the other entity acquired in excess of 5% of the shares of the
Company entitled to vote in the election of Directors, considered for the
purposes of this Article Fifth as one class, or a person recommended to succeed
a continuing director or by a majority of the continuing directors; and (6), for
the purposes of clause (a) (1) of this Article Fifth, the term "other
consideration to be received" shall mean Common Shares of the Company retained
by its
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existing public shareholders in the event of a business combination with the
other entity in which the Company is the surviving corporation.
(c) A majority of the continuing directors shall have the power and duty to
determine for the purposes of this Article Fifth, on the basis of information
known to them, whether (1) the other entity beneficially owns more than 30% of
the outstanding shares of the Company entitled to vote in the election of
Directors, (2) another entity is an "affiliate" or "associate" (as defined
above) of another, or (3) another entity has an agreement, arrangement, or
understanding with another.
(d) No amendment to the Articles of Incorporation of the Company shall
amend, alter, change, or repeal any of the provisions of this Article Fifth
unless the amendment effecting such amendment, alteration, change, or repeal
receives the affirmative vote of the holders of 85% of all shares of the Company
entitled to vote in the election of Directors, considered for the purposes of
this Article Fifth as one class, except that this paragraph (d) shall not apply
to, and the 85% vote shall not be required for, any amendment, alteration,
change, or repeal recommended to the shareholders by the Board of Directors of
the Company if the recommendation has been approved by at least a majority of
all of the directors and by at least two-thirds of the continuing directors.
(e) Nothing contained in this Article Fifth shall be construed to relieve
any other entity from any fiduciary obligation imposed by law.
SIXTH. Section 1701.831 of the Ohio Revised Code shall not apply to
"control share acquisitions" of shares of the Company so long as Article Seventh
hereof is in effect.
SEVENTH. The Control Share Acquisition provisions applicable to the shares
of the Company, in lieu of those contained in Section 1701.831 of the Ohio
Revised Code, are set forth in this Article Seventh.
(A) As used in this Article Seventh:
(1) (a) "Control Share Acquisition" means the acquisition, directly or
indirectly, by any Person (as hereinafter defined) of shares of the Company
(other than in accordance with the provisions of paragraph (1) (b) of this
Section (A)) that, when added to all other shares of the Company in respect
of which that person, directly or indirectly, may exercise or direct the
exercise of voting power as provided herein, would entitle such Person,
immediately after the acquisition, directly or indirectly, to exercise or
direct the exercise of the voting power in the election of Directors of the
Company of a number of the outstanding shares of the Company (as
distinguished from the number of votes to which the holder of such shares
is entitled) within any of the following ranges (each a "Range"):
(i) One-fifth or more but less than one-third of such outstanding
shares,
(ii) One-third or more but less than a majority of such outstanding
shares, and
(iii) A majority or more of such outstanding shares.
For the purposes of this definition, a bank, broker, nominee, trustee, or other
person who acquires shares in the ordinary course of business for the benefit of
others in good faith and not for the purpose of circumventing this Article
Seventh shall, however, be deemed to have voting power only of shares in respect
of which that person would be able to exercise or direct the exercise of votes
without further instruction from others on the proposed Control Share
Acquisition at the meeting of shareholders called under this Article Seventh.
(b) The acquisition of any shares of the Company does not constitute a
Control Share Acquisition for the purposes of this Article Seventh if the
acquisition is consummated:
(i) Prior to August 28, 1991;
(ii) Pursuant to a contract existing prior to August 28, 1991;
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(iii) Under such circumstances that the acquisition does not result in
the Person's being entitled, immediately thereafter and for the first time,
to exercise or direct the exercise of voting power in the election of
Directors of a number of outstanding shares within the Range of one-fifth
or more but less than one-third of such outstanding shares or within a
Range higher than the Range applicable prior to the acquisition;
(iv) By bequest or inheritance, by operation of law upon the death of
any individual, or by any other transfer without valuable consideration,
including a gift that is made in good faith and not for the purpose of
circumventing this Article Seventh;
(v) Pursuant to the satisfaction of a pledge or other security
interest created in good faith and not for the purpose of circumventing
this Article Seventh; or
(vi) Pursuant to a merger, consolidation, combination, or majority
share acquisition adopted or authorized by shareholder vote in compliance
with the provisions of Section 1701.78 or 1701.79 of the Ohio Revised Code
if the Company is the surviving or new corporation in the merger or
consolidation or is the acquiring corporation in a combination or majority
share acquisition.
The acquisition by any Person of shares of the Company in a manner described
under this paragraph (1) (b) of this Section (A) shall be deemed a Control Share
Acquisition authorized pursuant to this Article Seventh within the Range
applicable after the acquisition, provided, in the case of an acquisition in a
manner described under clause (1) (b) (iv) or (v) of this Section (A), the
transferor of shares to that Person had previously obtained any authorization of
shareholders required under this Article Seventh or under Section 1701.831 of
the Ohio Revised Code in connection with that transferor's acquisition of shares
of the Company.
(c) The acquisition of shares of the Company in good faith and not for the
purpose of circumventing this Article Seventh from any Person whose Control
Share Acquisition had previously been authorized by shareholders, or from any
Person whose previous acquisition of shares would have constituted a Control
Share Acquisition but for paragraph (1) (b) of this Section (A), does not
constitute a Control Share Acquisition unless that acquisition entitles the
acquiring Person, directly or indirectly, to exercise or direct the exercise of
voting power in the election of Directors of the Company of a number of shares
in excess of the Range authorized by the shareholders or defined to be
authorized under paragraph (1)(b) of this Section (A).
(2) "Person" includes, without limitation, a natural person, a corporation
(whether nonprofit or for profit), a partnership, a limited liability company,
an unincorporated society or association, and two or more persons having a joint
or common interest.
(3) "Acquiring Person" means any Person who has delivered an Acquiring
Person Statement to the Company pursuant to Section (B) of this Article Seventh.
(4) "Acquiring Person Statement" means a written statement that complies
with Section (B) of this Article Seventh.
(5) "Interested Shares" means the shares of the Company in respect of which
any of the following persons may exercise or direct the exercise of the voting
power of the Company in the election of Directors:
(a) An Acquiring Person;
(b) Any officer of the Company elected or appointed by the Directors,
provided, however, that shares which, as of the record date of any special
meeting held pursuant to this Article Seventh, have been owned beneficially
by such person for four or more years shall not be deemed to be "Interested
Shares" for purposes of any vote at such meeting;
(c) Any employee of the Company who is also a Director, provided,
however, that shares which, as of the record date of any special meeting
held pursuant to this Article Seventh, have been owned
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beneficially by such person for four or more years shall not be deemed to
be "Interested Shares" for purposes of any vote at such meeting; and
(d) Any Person that acquires such shares for valuable consideration
during the period beginning with the date of the first public disclosure of
a proposed Control Share Acquisition of the Company or any proposed merger,
consolidation, or other transaction that would result in a change in
control of the Company or all or substantially all of its assets, and
ending on the record date established by the directors pursuant to Section
1701.45 of the Ohio Revised Code and Section (D) of this Article Seventh,
if either of the following applies:
(i) The aggregate consideration paid or given by the Person who
acquired the shares, and any other Persons acting in concert with the
Person, for all such shares exceeds two hundred fifty thousand dollars;
(ii) The number of shares acquired by the Person who acquired the
shares, and any other Persons acting in concert with the Person, exceeds
one-half of one per cent of the outstanding shares of the Company
entitled to vote in the election of Directors.
(e) Any Person that transfers such shares for valuable consideration
after the record date described in paragraph 5(d) of this Section (D) as to
shares so transferred, if accompanied by the voting power in the form of a
blank proxy, an agreement to vote as instructed by the transferee, or
otherwise.
(2) If any part of this division is held to be illegal or invalid in
application, the illegality or invalidity does not affect any legal and valid
application thereof or any other provision or application of this Article
Seventh that can be given effect without the invalid or illegal provision, and
the parts and applications of this Article Seventh are severable.
(B) Any Person who proposes to make a Control Share Acquisition, or seeks
to exercise one-fifth or more of the voting power of the Company under paragraph
(a) of Division II of Article Fourth hereof, shall deliver an Acquiring Person
Statement to the Company's principal executive offices. The Acquiring Person
Statement shall set forth all of the following to the extent appropriate to the
authorization such Person is seeking:
(1) The identity of the Acquiring Person;
(2) A statement that the Acquiring Person Statement is given pursuant
to this Article Seventh;
(3) The number and class of shares of the Company owned, directly or
indirectly, by the Acquiring Person and the date or dates when such shares
were acquired;
(4) The Range under which the proposed Control Share Acquisition
would, if consummated, fall;
(5) A description in reasonable detail of the terms of the proposed
Control Share Acquisition; and
(6) Representations of the Acquiring Person, together with a statement
in reasonable detail of the facts upon which they are based, that the
proposed Control Share Acquisition, if consummated, will not be contrary to
law and that the Acquiring Person has the financial capacity to make the
proposed Control Share Acquisition.
(C) Within ten days after receipt of an Acquiring Person Statement that
complies with Section (B) of this Article Seventh, the Directors of the Company
shall call a special meeting of shareholders of the Company for the purpose of
voting on the proposed Control Share Acquisition. Unless the Acquiring Person
agrees in writing to another date, the special meeting of shareholders shall be
held within fifty days after receipt by the Company of the Acquiring Person
Statement. If the Acquiring Person so requests in writing at the time of
delivery of the Acquiring Person Statement, the special meeting shall be held no
sooner than thirty days after receipt by the Company of the Acquiring Person
Statement. The special
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meeting of shareholders shall not be held later than any other special meeting
that is called, after receipt by the Company of the Acquiring Person Statement,
in compliance with Section 1701.76, 1701.78, 1701.79 or 1701.83 of the Ohio
Revised Code or this Article Seventh.
(D) Notice of the special meeting of shareholders shall be given, as
promptly as reasonably practicable, to all shareholders of record, whether or
not entitled to vote thereat, as of the record date fixed for the meeting. The
notice shall include or be accompanied by the following:
(1) A copy of the Acquiring Person Statement delivered to the Company
pursuant to this Article Seventh; and
(2) A statement by the Company, authorized by its Directors, of its
position or recommendation, or that it is taking no position or making no
recommendation, with respect to the proposed Control Share Acquisition.
(E) The Acquiring Person may make the proposed Control Share Acquisition if
both of the following occur:
(1) The shareholders of the Company who hold shares entitling them to
vote in the election of Directors authorize the acquisition at the special
meeting held for that purpose at which a quorum is present by an
affirmative vote of a majority of the voting power of the Company in the
election of Directors represented at such meeting in person or by proxy and
a majority of the portion of such voting power excluding the voting power
of Interested Shares represented at the meeting in person or by proxy. A
quorum shall be deemed to be present at such meeting if at least a majority
of the voting power of the Company in the election of Directors is
represented at the meeting in person or by proxy.
(2) The acquisition is consummated, in accordance with the terms so
authorized, not later than three hundred sixty days following shareholder
authorization of the Control Share Acquisition.
(F) As provided in Section 1701.48 of the Ohio Revised Code, no proxy
appointed by or in connection with a shareholder authorization of a Control
Share Acquisition is valid if it (1) provides that it is irrevocable or (2) is
sought, appointed, and received other than (a) in accordance with all applicable
requirements of the laws of the State of Ohio and of the United States and (b)
separate and apart from the sale or purchase, contract or tender for sale or
purchase, or request or invitation for tender for sale of purchase, of shares of
the Company.
(G) Shares acquired in violation of this Article Seventh shall be subject
to restrictions on transfer of such shares and such other provisions as may be
contained in the Regulations of the Company.
EIGHTH. No holder of shares of the Company of any class, as such, shall
have any pre-emptive right to purchase or subscribe for shares of the Company,
of any class, or other securities of the Company, of any class, whether now or
hereafter authorized.
NINTH. The Company, by action of its directors and without action by its
shareholders, may purchase its own shares in accordance with the provisions of
Chapter 1701 of the Ohio Revised Code. Such purchases may be made either in the
open market or at public or private sale, in such manner and amounts of any one
class or any combination of classes, from such holder or holders of outstanding
shares of the Company, and at such prices as the directors shall from time to
time determine without regard to differences among the classes in price and
other terms under which shares may be purchased or in relative number of shares
that may be available for purchase.
Tenth. These Amended Articles of Incorporation supersede the existing
Amended Articles of Incorporation of the Company.
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