EXHIBIT 3(A)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Amended and Restated
Articles of Incorporation
of
THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY
---------------------
As amended through
May 1, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY
FIRST: The name of this Company is THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY.
SECOND: The place where this Company shall be located and its principal
business shall be transacted is the City of Cleveland in the County of Cuyahoga
and State of Ohio.
THIRD: The Company is formed for the purpose of developing, producing,
manufacturing, buying, selling and generally dealing in products, goods, wares,
merchandise and services of any and all kinds and doing all things necessary or
incidental thereto.
FOURTH: The number of shares which the Company is authorized to have
outstanding is 330,000,000 consisting of 30,000,000 shares of Serial Preferred
Stock without par value (hereinafter called "Serial Preferred Stock") and
300,000,000 shares of Common Stock, par value $1.00 each (hereinafter called
"Common Stock").
The shares of such classes shall have the following express terms:
DIVISION A
EXPRESS TERMS OF THE SERIAL PREFERRED STOCK
Section 1. The Serial Preferred Stock may be issued from time to time in
one or more series. All shares of Serial Preferred Stock shall be of equal rank
and shall be identical, except in respect of the matters that may be fixed by
the Board of Directors as hereinafter provided, and each share of each series
shall be identical with all other shares of such series, except as to the date
from which dividends are cumulative. Subject to the provisions of Sections 2 to
8, both inclusive, of this Division, which provisions shall apply to all Serial
Preferred Stock, the Board of Directors hereby is authorized to cause such
shares to be issued in one or more series and with respect to each such series
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 (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) The annual dividend rate of the series.
(d) The dates at 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) 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 Company.
(h) Whether the shares of the series shall be convertible into Common
Stock, and, if so, the conversion price or prices, any adjustments thereof,
and all other terms and conditions upon which such conversion may be made.
1
(i) Restrictions (in addition to those set forth in Sections 6(b) and
6(c) of this Division) on the issuance of shares of the same series or of
any other class or series.
The Board of Directors is authorized to adopt from time to time amendments
to the Articles of Incorporation fixing, with respect to each such series, the
matters described in clauses (a) to (i), both inclusive, of this Section 1.
Section 2. The holders of Serial Preferred Stock of each series, in
preference to the holders of Common Stock and of any other class of shares
ranking junior to the Serial Preferred Stock, shall be entitled to receive out
of any funds legally available and when and as declared by the Board of
Directors dividends in cash at the rate for such series fixed in accordance with
the provisions of Section 1 of this Division and no more, 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 or set apart
for any of the Serial Preferred Stock 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 paid upon or declared or set apart for all Serial Preferred
Stock of all series then issued and outstanding and entitled to receive such
dividend.
Section 3. In no event so long as any Serial Preferred Stock shall be
outstanding shall any dividends, except a dividend payable in Common Stock or
other shares ranking junior to the Serial Preferred Stock, be paid or declared
or any distribution be made except as aforesaid on the Common Stock or any other
shares ranking junior to the Serial Preferred Stock, nor shall any Common Stock
or any other shares ranking junior to the Serial Preferred Stock be purchased,
retired or otherwise acquired by the Company (except out of the proceeds of the
sale of Common Stock or other shares ranking junior to the Serial Preferred
Stock received by the Company subsequent to August 31, 1966):
(a) Unless all accrued and unpaid dividends on Serial Preferred Stock,
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 there shall be no arrearages with respect to the redemption
of Serial Preferred Stock of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of
this Division.
Section 4. (a) Subject to the express terms of each series and to the
provisions of Section 6(b)(iii) of this Division A, the Company may from time to
time redeem all or any part of the Serial Preferred Stock of any series at the
time outstanding (i) 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, or (ii) in fulfillment of 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, together in each case with accrued and unpaid dividends to the
redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the Serial Preferred Stock to be redeemed at their
respective addresses then appearing on the books of the Company, not less than
thirty (30) days nor more than sixty (60) days prior to the date fixed for such
redemption. At any time before or after notice has been given as above provided,
the Company may deposit the aggregate redemption price of the shares of Serial
Preferred Stock to be redeemed with any bank or trust company in Cleveland,
Ohio, or New York, New York, having capital and surplus of more than Five
Million Dollars ($5,000,000), named in such notice, and direct that such amount
be paid to the respective holders of the shares of Serial Preferred Stock so to
be redeemed, in amounts equal to the redemption price of all shares of Serial
Preferred Stock so to be redeemed, on surrender of the stock certificate or
certificates held by such holders. Upon 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 interest in or claim against the Company 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
privileges of conversion. In case less than all of the outstanding shares of
Serial Preferred Stock
2
are to be redeemed, the Company 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 shares of Serial Preferred Stock which shall have been
called for redemption shall not, within six years after such deposit, claim the
amount deposited for the redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Company such unclaimed amounts and thereupon
such bank or trust company and the Company shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any shares of Serial Preferred Stock which are redeemed by the Company
pursuant to the provisions of this Section 4 and any shares of Serial Preferred
Stock which are purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series and any shares of Serial
Preferred Stock which are converted in accordance with the express terms thereof
shall be cancelled and not reissued. Any shares of Serial Preferred Stock
otherwise acquired by the Company shall resume the status of authorized and
unissued shares of Serial Preferred Stock without serial designation.
Section 5. (a) The holders of Serial Preferred Stock of any series shall,
in case of voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, be entitled to receive in full out of the assets of
the Company, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the Serial Preferred Stock the amounts fixed with respect to the
shares of such series in accordance with Section 1 of this Division, plus in any
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 Company. In case the net assets of the Company legally
available therefor are insufficient to permit the payment upon all outstanding
shares of Serial Preferred Stock of the full preferential amount to which they
are respectively entitled, then such net assets shall be distributed ratably
upon outstanding shares of Serial Preferred Stock in proportion to the full
preferential amount to which each such share is entitled.
After payment to holders of Serial Preferred Stock of the full preferential
amounts as aforesaid, holders of Serial Preferred Stock as such shall have no
right or claim to any of the remaining assets of the Company.
(b) 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 dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section 5.
Section 6. (a) The holders of Serial Preferred Stock shall be entitled to
one vote for each share of such stock upon all matters presented to the
shareholders; and, except as otherwise provided herein or required by law, the
holders of Serial Preferred Stock and the holders of Common Stock shall vote
together as one class on all matters. No adjustment of the voting rights of the
holders of Serial Preferred Stock shall be made in the event of an increase or
decrease in the number of shares of Common Stock authorized or issued or in the
event of a stock split or combination of the Common Stock or in the event of a
stock dividend on any class of stock payable solely in Common Stock, and none of
the foregoing actions shall be deemed to affect adversely the voting powers,
rights or preferences of Serial Preferred Stock within the meaning and for the
purpose of this Division A.
If, and so often as, the Company shall be in default in the payment of
dividends in an amount equivalent to six (6) quarterly dividends (whether or not
consecutive) on any series of Serial Preferred Stock at the time outstanding,
whether or not earned or declared, the holders of Serial Preferred Stock of all
series, voting separately as a class and in addition to all other rights to vote
for Directors, shall be entitled to elect, as herein provided, two (2) members
of the Board of Directors of the Company; provided, however, that the holders of
shares of Serial Preferred Stock shall not have or exercise such special class
voting rights except at meetings of the shareholders for the election of
Directors at which the holders of not less than thirty-five per cent (35%) of
the outstanding shares of Serial Preferred Stock of all series then outstanding
are present in person or by proxy; and provided further 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 the Serial Preferred
Stock of
3
all series then outstanding shall have been paid, whereupon the holders of
Serial Preferred Stock 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
paragraph.
In the event of default entitling the holders of Serial Preferred Stock to
elect two (2) 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 Company upon written request of, or may be called by, the
holders of record of at least ten per cent (10%) of the shares of Serial
Preferred Stock 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 Company shall not be required to call
such special meeting if the annual meeting of shareholders shall be held within
ninety (90) days after the date of receipt of the foregoing written request from
the holders of Serial Preferred Stock. At any meeting at which the holders of
Serial Preferred Stock shall be entitled to elect Directors, the holders of
thirty-five per cent (35%) of the then outstanding shares of Serial Preferred
Stock 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 such a quorum shall be
sufficient to elect the members of the Board of Directors which the holders of
Serial Preferred Stock are entitled to elect as hereinabove provided.
(b) The vote or consent of the holders of at least two-thirds of the shares
of Serial Preferred Stock at the time outstanding, given in person or by proxy
either in writing or at a meeting called for the purpose at which the holders of
Serial Preferred Stock shall vote separately as a class, shall be necessary to
effect any one or more of the following (but so far as the holders of Serial
Preferred Stock 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 Company which
affects adversely the voting powers, rights or preferences of the holders
of Serial Preferred Stock; provided, however, that, for the purpose of this
clause (i) only, neither the amendment of the Articles of Incorporation so
as to authorize or create, or to increase the authorized or outstanding
amount of, Serial Preferred Stock or of any shares of any class ranking on
a parity with or junior to the Serial Preferred Stock, nor the amendment of
the provisions of the Regulations so as to increase the number of Directors
of the Company shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of Serial Preferred Stock; and
provided further, that if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all series of
Serial Preferred Stock at the time outstanding, only the vote or consent of
the holders of at least two-thirds of the number of the shares at the time
outstanding of the series so affected shall be required;
(ii) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class, or any security convertible
into shares of any class, ranking prior to the Serial Preferred Stock; or
(iii) The purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Serial Preferred Stock then outstanding
except in accordance with a stock purchase offer made to all holders of
record of Serial Preferred Stock, unless all dividends upon all Serial
Preferred Stock then outstanding for all previous quarterly dividend
periods shall have been declared and paid or funds therefor set apart and
all accrued sinking fund obligations applicable thereto shall have been
complied with.
This Section 6(b) shall not apply to, and the class or series vote
specified therein shall not be required for the approval of, any action which is
part of or effected in connection with the consolidation of the Company with or
its merger into any other corporation, so long as the class vote specified by
Section 6(c) of this Division is obtained in any case in which such class vote
is required under clause (ii) of said Section 6(c).
(c) The vote or consent of the holders of at least a majority of the shares
of Serial Preferred Stock at the time outstanding, given in person or by proxy
either in writing or at a meeting called for the purpose at which the holders of
Serial Preferred Stock shall vote separately as a class, shall be necessary to
effect any one or more of the following (but so far as the holders of Serial
Preferred Stock are concerned, such action may be effected with such vote or
consent):
4
(i) The sale, lease or conveyance by the Company of all or
substantially all of its property or business; or
(ii) The consolidation of the Company with or its merger into any
other corporation unless the corporation resulting from such consolidation
or merger will have after such consolidation or merger no class of shares
either authorized or outstanding ranking prior to or on a parity with the
Serial Preferred Stock except the same number of shares ranking prior to or
on a parity with the Serial Preferred Stock and having the same rights and
preferences as the shares of the Company authorized and outstanding
immediately preceding such consolidation or merger, and each holder of
Serial Preferred Stock immediately preceding such consolidation or merger
shall receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(iii) The authorization of any shares ranking on a parity with the
Serial Preferred Stock or an increase in the authorized number of shares of
Serial Preferred Stock.
Section 7. If the shares of any series of Serial Preferred Stock shall be
convertible into Common Stock, then upon conversion of shares of such series the
stated capital of the Common Stock issued upon such conversion shall be the
aggregate par value of the shares so issued having par value, or, in the case of
shares without par value, shall be an amount equal to the stated capital
represented by each share of Common Stock outstanding at the time of such
conversion multiplied by the number of shares of Common Stock issued upon such
conversion. The stated capital of the Company shall be correspondingly increased
or reduced to reflect the difference between the stated capital of the shares of
Serial Preferred Stock so converted and the stated capital of the Common Stock
issued upon such conversion.
Section 8. The holders of Serial Preferred Stock shall have no preemptive
right to purchase or have offered to them for purchase any shares or other
securities of the Company, whether now or hereafter authorized.
Section 9. For the purpose of this Division A:
Whenever reference is made to shares "ranking prior to the Serial Preferred
Stock" or "on a parity with the Serial Preferred Stock", such reference shall
mean and include all shares of the Company 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 Company are given preference over, or rank on an equality
with (as the case may be) the rights of the holders of Serial Preferred Stock;
and whenever reference is made to shares "ranking junior to the Serial Preferred
Stock", such reference shall mean and include all shares of the Company in
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 Company are junior
and subordinate to the rights of the holders of Serial Preferred Stock.
DIVISION A-1
CUMULATIVE REDEEMABLE SERIAL PREFERRED STOCK
Section 1. There is established hereby a series of Serial Preferred Stock
that shall be designated "Cumulative Redeemable Serial Preferred Stock"
(hereinafter sometimes called this "Series" or the "Cumulative Redeemable
Preferred Stock") and that shall have the terms set forth in this Division A-1.
Section 2. The number of shares of this Series shall be 3,000,000.
Section 3. (a) The holders of record of shares of Cumulative Redeemable
Preferred Stock shall be entitled to receive, when and as declared by the Board
of 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 January, April, July and October 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 share of
Cumulative Redeemable Preferred Stock or fraction of a share of Cumulative
Redeemable Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the lesser of (i) $750 per share
5
or (ii) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions (other than a dividend payable in shares of Common Stock, or a
subdivision of the outstanding Common Stock (by reclassification or otherwise)),
declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share of Cumulative Redeemable Preferred Stock
or fraction of a share of Cumulative Redeemable Preferred Stock. In the event
the Company shall at any time declare or pay any dividend on the Common Stock
payable in Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders of
shares of Cumulative Redeemable Preferred Stock 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
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on outstanding shares
of Cumulative Redeemable Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Cumulative Redeemable
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Cumulative
Redeemable Preferred Stock 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 Cumulative Redeemable Preferred
Stock 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 Stock of all series then outstanding and entitled to receive such
dividend. The Board of Directors may fix a record date for the determination of
holders of Cumulative Redeemable Preferred Stock 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. Subject to the provisions of Section 6(b)(iii) of Division A and
in accordance with Section 4 of Division A, shares of the Cumulative Redeemable
Preferred Stock shall be redeemable from time to time at the option of the Board
of Directors of the Company, as a whole or in part, at any time at a redemption
price per share equal to one hundred times the then applicable Purchase Price as
defined in that certain Rights Agreement, dated as of April 23, 1997 between the
Company and KeyBank National Association (the "Rights Agreement"), as the same
may be from time to time amended in accordance with its terms, which Purchase
Price is $110 as of April 23, 1997, subject to adjustment from time to time as
provided in the Rights Agreement. Copies of the Rights Agreement are available
from the Company upon request. In case less than all of the outstanding shares
of Cumulative Redeemable Preferred Stock are to be redeemed, the Company shall
select by lot the shares so to be redeemed in such manner as shall be prescribed
by its Board of Directors.
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 of
stock ranking junior (either as to dividends or upon Liquidation) to the
Cumulative Redeemable Preferred Stock, unless, prior thereto, the holders of
shares of Cumulative Redeemable Preferred Stock 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, as the same may be from time to time amended
in accordance with its terms (which Purchase Price is $110 as of April 23,
1997), 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 shares of Cumulative Redeemable Preferred
Stock shall be entitled to receive at least an aggregate
6
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 Stock (the "Cumulative Redeemable Preferred Stock 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 Cumulative Redeemable Preferred
Stock Liquidation Preference and the liquidation preferences of all other series
of Serial Preferred Stock, if any, which rank on a parity with the Cumulative
Redeemable Preferred Stock as to distribution of assets in Liquidation, all
shares of this Series and of such other series of Serial Preferred Stock 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 Stock payable in Common Stock, or effect a subdivision or
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of Cumulative Redeemable Preferred Stock were
entitled immediately prior to such event pursuant to the proviso set forth in
paragraph 5(a) above, shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock 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 purposes of this
Section 5.
Section 6. The Cumulative Redeemable Preferred Stock shall not be
convertible into Common Stock.
DIVISION A-2
CONVERTIBLE PARTICIPATING SERIAL PREFERRED STOCK
Section 1. Definitions. For purposes of this Division A-2, the following
terms shall have the meanings described:
"Acquisition Debt" is equal to Two Hundred Fifty Million Dollars
($250,000,000). Upon payment in full of the Purchase Money Note, the Acquisition
Debt shall be zero.
"Adjusted Common Stock Value" means 250,000 shares, multiplied by One
Thousand Dollars ($1,000), divided by the Common Stock Price on the Original
Issue Date, multiplied by the Common Stock Price (but never less than the Floor
Price nor greater than the Cap Amount).
"Base Value" shall, as of any specified date, be equal to the greater of
(a) 35% of the cumulative amount of principal paid or forgiven on the Purchase
Money Note, or (b) Fifty Million Dollars ($50,000,000).
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions are authorized or obligated by law or executive order
to close in New York City.
"Cap Amount" shall be (a) 150% of the Floor Price during the first five
years following the Original Issue Date, and (b) 175% of the Floor Price at any
time after the fifth anniversary date of the Original Issue Date.
"Closing Price" of any security on any date means the closing sale price
(or, if no closing sale price is reported, the last reported sale price) of such
security on the NYSE on such date, as reported in the NYSE Composite Transaction
Reporting System, or, if such security is not listed for trading on the NYSE on
that date, as reported in the composite transactions reporting system for the
principal United States securities exchange on which such security is so listed,
or, if such security is not so listed, as reported on the National Association
of Securities Dealers, Inc. Automated Quotation System, or, if not so reported,
the last quoted bid price for such security in the over-the-counter market as
reported by the National Quotation Bureau or similar
7
organization, or, if such bid price is not available, the market value of such
security on such date as determined by a nationally recognized independent
investment banking firm retained for the purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, $1.00 par value per share, of the
Company.
"Common Stock Price" means, on any specified date, the Closing Price of
Common Stock on the last Trading Day before such date. The Common Stock Price
shall be appropriately adjusted to take into account any dividends or
distributions payable in Common Stock, or any reclassification, subdivision or
combination of, or similar transaction involving, Common Stock.
"Conversion Amount Per Share" is equal to the Convertible Participating
Preferred Stock Value Per Share.
"Conversion Date" means the date specified in Section 6(c)(i) of this
Division A-2.
"Conversion Notice" means a notice described in Section 6(c)(i) of this
Division A-2.
"Convertible Participating Preferred Stock" has the meaning set forth in
Section 2 of this Division A-2.
"Convertible Participating Preferred Stock Liquidation Preference" has the
meaning set forth in Section 8(a) of this Division A-2.
"Convertible Participating Preferred Stock Value Per Share" is equal to a
fraction. The numerator is the sum of (a) the Adjusted Common Stock Value plus
(b) the Base Value less (c) the Acquisition Debt. The denominator is 250,000
shares. If the Convertible Participating Preferred Stock Value Per Share is
being calculated on a date on which principal is being paid on the Purchase
Money Note, the Base Value shall be calculated including the principal payment
made on that date.
"ESOP" means the employee stock ownership plan feature of the Plan and any
other employee stock ownership plan and trust that is designated by the Company
and that assumes or becomes a transferee or a successor by merger, spin-off or
split-up, of any of the assets and liabilities of such employee stock ownership
plan feature.
"ESOP Loan Suspense Account" means a suspense account maintained by the
ESOP pursuant to Treasury Regulation Section 54.4975-11(c) (1979).
"Floor Price" means the Common Stock Price on the Original Issue Date.
"Liquidation" has the meaning set forth in Section 8(a) of this Division
A-2.
"Original Issue Date" means the date of original issuance of the
Convertible Participating Preferred Stock.
"Per-Share Redemption Amount" means, as of any specified date, the
Conversion Amount Per Share.
"Plan" means The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company Employee Stock Purchase and
Savings Plan, and any other plan and trust qualified under Code Section 401(a)
that is designated by the Company and that assumes or becomes a transferee or a
successor by merger, spin-off or split-up, of substantially all of the assets
and liabilities of such plan.
"Purchase Money Note" means the purchase money note, in the principal
amount of Two Hundred Fifty Million Dollars ($250,000,000), made in favor of the
Company by The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company Employee Stock Purchase and Savings Plan
to acquire the Convertible Participating Preferred Stock.
"Redemption Date" means the Business Day that is the effective date of a
redemption pursuant to Section 7(b) of this Division A-2.
"Redemption Notice" means the notice described in Section 7(b) of this
Division A-2.
"Redemption Price" means the sum of: (a) the product of (i) the number of
whole and fractional shares of Convertible Participating Preferred Stock
redeemed, multiplied by (ii) the Per-Share Redemption
8
Amount; plus (b) any accumulated and unpaid dividends on the shares of
Convertible Participating Preferred Stock.
"Series" has the meaning set forth in Section 2 of this Division A-2.
"Trading Day" means, with respect to any security, (a) if the principal
trading market for the applicable security is the NYSE or another national
securities exchange, a day on which the NYSE or such other national securities
exchange is open for business, (b) if the principal trading market for the
applicable security is the Nasdaq, a day on which a trade may be made on the
Nasdaq National Market, or (c) if the applicable security is not listed,
admitted for trading or quoted as provided in clause (a) or (b), any Business
Day. Any day for which there is no reported sales of Common Stock on the
applicable exchange or market shall not be treated as a Trading Day.
Section 2. Designation of Series. There is established hereby a series of
Serial Preferred Stock that shall be designated "Convertible Participating
Serial Preferred Stock" (hereinafter sometimes called this "Series" or the
"Convertible Participating Preferred Stock") and that shall have the terms set
forth in this Division A-2.
Section 3. Number of Shares. The number of shares of this Series shall be
1,000,000.
Section 4. Issuance and Transfer Restrictions. Shares of Convertible
Participating Preferred Stock shall be issued and sold by the Company to the
Plan to be held in the ESOP Loan Suspense Account. Shares of Convertible
Participating Preferred Stock shall be uncertificated shares. Transfers of
shares of Convertible Participating Preferred Stock may only be effected by
applicable entry or entries in the stock transfer books of the Company. Shares
of Convertible Participating Preferred Stock are prohibited from being
transferred out of the ESOP Loan Suspense Account until such time as such shares
are converted into shares of Common Stock in accordance with Section 6 of this
Division A-2 or redeemed by the Company in accordance with Section 7 of this
Division A-2. The transfer restrictions set forth in the preceding sentence
shall not apply to any shares of Common Stock resulting from a conversion of the
Convertible Participating Preferred Stock.
Section 5. Dividends. The holders of record of shares of Convertible
Participating Preferred Stock shall be entitled to receive, when and as declared
by the Board of Directors in accordance with the terms hereof, out of funds
legally available for such purpose, cumulative quarterly dividends payable in
cash on the last 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 share of Convertible Participating Preferred Stock or fraction of a share
of Convertible Participating Preferred Stock, in an amount per share equal to
$10.00 per share. Dividends shall begin to accrue and be cumulative on
outstanding shares of Convertible Participating Preferred Stock from the date of
issue of such shares. Accrued but unpaid dividends shall not bear interest. No
dividends shall be paid upon or declared and set apart for any Convertible
Participating Preferred Stock 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 Stock of all series then outstanding and entitled
to receive such dividend. The Board of Directors may fix a record date for the
determination of holders of Convertible Participating Preferred Stock 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 6. Conversion. (a) Conversion Right. All or any portion of the
outstanding shares of Convertible Participating Preferred Stock held in the ESOP
Loan Suspense Account shall be convertible, at the option of the Plan, at any
time and from time to time, and without the payment of additional consideration
by the Plan, into such number of shares of Common Stock as is determined under
the following conversion formula. Each share of Convertible Participating
Preferred Stock will be converted into a number of shares of Common Stock equal
to (i) the Conversion Amount Per Share divided by (ii) the Common Stock Price.
(b) Alternative Conversion Right. All, but not less than all, of the
outstanding shares of Convertible Participating Preferred Stock held in the ESOP
Loan Suspense Account shall be convertible, at the option of the Plan, at any
time and from time to time, and without payment of additional consideration by
the Plan, into such number of shares of Common Stock as is determined under the
following conversion
9
formula. Each share of Convertible Participating Preferred Stock will be
converted into a number of shares of Common Stock equal to (i) the Adjusted
Common Stock Value divided by (ii) 250,000 shares divided by (iii) the Common
Stock Price. In the event the Convertible Participating Preferred Stock are
converted pursuant to the Alternative Conversion Right set forth in this Section
6(b), the entire unpaid principal balance and any and all interest accrued on
such unpaid principal balance owing under the Purchase Money Note shall
immediately become due and payable.
(c) Conversion Procedures.
(i) In order to convert shares of Convertible Participating Preferred
Stock into shares of Common Stock pursuant to this Section 6, the Plan shall
deliver to the Company at its principal executive offices or another place
designated by the Company in a written notice sent to the Plan, a Conversion
Notice, in form satisfactory to the Company, duly executed by the Plan. Each
Conversion Notice shall specify (1) the number of shares of Convertible
Participating Preferred Stock to be converted and (2) whether the Convertible
Participating Preferred Stock are being converted pursuant to the Conversion
Right set forth in Section 6(a) of this Division A-2 or the Alternative
Conversion Right set forth in Section 6(b) of this Division A-2. In the event
shares of the Convertible Participating Preferred Stock are converted pursuant
to this Section 6, the Company shall deliver Common Stock which is readily
tradable on an established securities market (A) as soon as practicable after
receipt of the Conversion Notice, if such Conversion Notice is received prior to
the effectiveness of any registration statement filed with the Securities and
Exchange Commission regarding the registration of such Common Stock, or (B) as
soon as reasonably practicable, but not later than five (5) Business Days, after
receipt of the Conversion Notice, if such Conversion Notice is received after
the effectiveness of any registration statement filed with the Securities and
Exchange Commission regarding the registration of such Common Stock. Any
conversion pursuant to this Section 6 shall be deemed to have been effected at
the close of business on the Business Day on which the Conversion Notice has
been received by the Company (a "Conversion Date").
(ii) The Company shall, as soon as practicable after the Conversion
Date, cause to be issued and delivered to the person specified in the Conversion
Notice a certificate or certificates evidencing the number of full shares of
Common Stock to which such person shall be entitled, together with a cash
payment in respect of any fractional shares of Common Stock otherwise issuable.
The person or persons entitled to receive the shares of Common Stock deliverable
upon conversion of such shares of Convertible Participating Preferred Stock
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock on the relevant Conversion Date, unless the stock transfer books
of the Company shall be closed on such Conversion Date, in which event such
person or persons shall be deemed to have become such holder or holders of
record at the close of business on the next succeeding day on which such stock
transfer books are open.
(d) Fractional Shares. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon conversion of any shares
of Convertible Participating Preferred Stock. If more than one share of
Convertible Participating Preferred Stock shall be surrendered for conversion at
one time by the same record holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the aggregate
number of shares of Convertible Participating Preferred Stock which are
converted. In lieu of any fractional share of Common Stock that would otherwise
be issuable upon conversion of any shares of Convertible Participating Preferred
Stock, the Company shall pay a cash adjustment in respect of such fractional
share in lieu thereof, calculated to the nearer cent, with one-half cent or more
rounded upward.
(e) Reservation and Authorization of Shares. The Company shall at all
times when the Convertible Participating Preferred Stock shall be outstanding,
reserve and keep available out of its authorized but unissued Common Stock, for
the purpose of effecting the conversion of the Convertible Participating
Preferred Stock, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of Convertible Participating Preferred Stock.
(f) Converted Shares. After the Conversion Date with respect to any
shares of Convertible Participating Preferred Stock, such shares shall no longer
be deemed to be outstanding and all rights with
10
respect to such shares, including but not limited to the rights, if any, to
receive notices or distributions and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof
to receive shares of Common Stock (and cash in lieu of fractional shares) in
exchange therefor.
Section 7. Redemption. (a) Shares Released from the ESOP Loan Suspense
Account. The Plan may, at the option of the Plan, elect to have the Company
redeem any or all shares or fractions of a share of Convertible Participating
Preferred Stock when and as they are released from the ESOP Loan Suspense
Account as provided in Treasury Regulation Section 54.4975-11(c). The amount
paid by the Company for shares so redeemed shall be equal to the Redemption
Price.
(b) Notice of Redemption. In the event of a redemption pursuant to
Section 7(a) of this Division A-2, the Plan shall give notice (a "Redemption
Notice") to the Company. Each Redemption Notice shall specify (i) the Redemption
Date, (ii) the number of shares of Convertible Participating Preferred Stock to
be redeemed or the aggregate Redemption Price for all shares of Convertible
Participating Preferred Stock to be redeemed as of the applicable Redemption
Date, (iii) the place or places for payment of the Redemption Price, (iv) that
payment will be made upon surrender of shares of Convertible Participating
Preferred Stock, and (v) that the right of holders to convert shares of
Convertible Participating Preferred Stock shall terminate at the close of
business on the Redemption Date (unless the Company defaults in the payment of
the Redemption Price). The Redemption Date may be the date the Redemption Notice
is given.
(c) Redemption Procedures. On the Redemption Date, the Plan shall
surrender the shares of Convertible Participating Preferred Stock to the Company
and shall thereupon be entitled to receive payment of the applicable Redemption
Price for each such share. If a Redemption Notice shall have been given, as
aforesaid, and if, on the Redemption Date, assets necessary for the redemption
shall be legally available therefor and shall have been irrevocably deposited,
set aside for or paid (including, payment in the form of debt forgiveness) to
the Plan, then, notwithstanding that the redeemed shares of Convertible
Participating Preferred Stock shall not have been surrendered, (i) such shares
shall no longer be deemed outstanding, (ii) the Plan shall cease to be a
stockholder of the Company to the extent of its interest in such shares, and
(iii) all rights whatsoever with respect to such shares of Convertible
Participating Preferred Stock shall terminate, except the right to receive the
Redemption Price for each such share, without interest or any sum of money in
lieu of interest thereon. Redemptions of Convertible Participating Preferred
Stock shall be effected as of the close of business on the Redemption Date
before effecting any conversion for which the Conversion Date corresponds with
the Redemption Date.
(d) No Sinking Fund. The shares of Convertible Participating Preferred
Stock shall not be subject to the operation of any retirement or sinking fund.
(e) Redeemed Shares. After the Redemption Date with respect to any
shares of Convertible Participating Preferred Stock, such shares shall no longer
be deemed to be outstanding and all rights with respect to such shares,
including but not limited to the rights, if any, to receive notices or
distributions and to vote, shall immediately cease and terminate on the
Redemption Date, except only the right of the holders thereof to receive the
Redemption Price therefor, without interest or any sum of money in lieu of
interest thereon. Any shares of Convertible Participating Preferred Stock
redeemed pursuant to this Section 7 shall be retired and canceled after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Serial Preferred Stock and may be reissued as
part of a new series of Serial Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions set forth herein.
(f) Payment of Redemption Price. The Company, at its option, may make
payment of the Redemption Price (i) in cash, (ii) in shares of Common Stock
which are readily tradeable on an established securities market, or (iii) in any
combination of any of the foregoing. For purposes of determining the number of
shares of Common Stock to be delivered by the Company in satisfaction, in whole
or in part, of any Redemption Price, shares of Common Stock shall be valued at
the Common Stock Price as of the Redemption Date.
11
Section 8. Liquidation. (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 of stock ranking junior (either as to dividends or upon
Liquidation) to the Convertible Participating Preferred Stock, unless, prior
thereto, the holders of shares of Convertible Participating Preferred Stock
shall have received at least an amount per share equal to $1,000, plus an amount
equal to accrued and unpaid dividends thereon, whether or not earned or
declared, to the date of such payment (the "Convertible Participating Preferred
Stock 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 Convertible Participating Preferred
Stock Liquidation Preference and the liquidation preferences of all other series
of Serial Preferred Stock, if any, which rank on a parity with the Convertible
Participating Preferred Stock as to distribution of assets in Liquidation, all
shares of this Series and of such other series of Serial Preferred Stock 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) The merger or consolidation of the Company into or with any other
Company, 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 purposes of this Section 8.
DIVISION B
EXPRESS TERMS OF THE COMMON STOCK
The Common Stock shall be subject to the express terms of the Serial
Preferred Stock and any series thereof. Each share of Common Stock shall be
equal to every other share of Common Stock. The holders of shares of Common
Stock shall be entitled to one vote for each share of such stock upon all
matters presented to the shareholders. The holders of shares of Common Stock
shall have no preemptive rights to purchase or have offered to them for purchase
any shares of Common Stock which at any time shall be required for issuance in
fulfillment of the provisions of any series of the Company's Serial Preferred
Stock.
FIFTH: No holders of any class of shares of the Company shall have any
preemptive right to purchase or have offered to them for purchase any shares or
other securities of the Company, whether now or hereafter authorized.
SIXTH: (A) Notwithstanding any provision of the Ohio Revised Code now or
hereafter in force 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 Company or of any class or classes
of shares thereof, such action, unless otherwise expressly required by statute
or by the Articles of the Company, 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 Company or of such class or classes.
(B) The affirmative vote (i) of the holders of shares entitling them to
exercise two-thirds of the voting power of the Company, and (ii) of the holders
of two-thirds of the shares of Common Stock at the time outstanding, given in
person or by proxy at a meeting called for the purpose at which the holders of
Common Stock shall vote separately as a class, shall be necessary:
(a) to approve (i) the sale, exchange, lease, transfer or other
disposition by the Company of all, or substantially all, of its assets or
business to a related corporation or an affiliate of a related corporation,
or (ii) the consolidation of the Company with or its merger into a related
corporation or an affiliate of a related corporation, or (iii) the merger
into the Company of a related corporation or an affiliate of a related
corporation, or (iv) a combination or majority share acquisition in which
the Company is the acquiring corporation and its voting shares are issued
or transferred to a related corporation or an affiliate of a related
corporation or to shareholders of a related corporation or an affiliate of
a related corporation; or
(b) to approve any agreement, contract or other arrangement with a
related corporation providing for any of the transactions described in
subparagraph (a) above; or
12
(c) to effect any amendment of the Articles of the Company which
changes the provisions of this Paragraph (B).
For the purpose of this Paragraph (B), (i) a "related corporation" in respect of
a given transaction shall be any corporation which, together with its affiliates
and associated persons, owns of record or beneficially, directly or indirectly,
more than 5% of the shares of any outstanding class of stock of the Company
entitled to vote upon such transaction, as of the record date used to determine
the shareholders of the Company entitled to vote upon such transaction; (ii) an
"affiliate" of a related corporation shall be any individual, joint venture,
trust, partnership or corporation which, directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the related corporation; (iii) an "associated person" of a related
corporation shall be any officer or director or any beneficial owner, directly
or indirectly, of 10% or more of any class of equity security, of such related
corporation or any of its affiliates; (iv) the terms "combination", "majority
share acquisition" and "acquiring corporation" shall have the same meaning as
that contained in Section 1701.01 of the Ohio General Corporation Law or any
similar provision hereafter enacted.
The determination of the Board of Directors of the Company, based on
information known to the Board of Directors and made in good faith, shall be
conclusive as to whether any corporation is a related corporation as defined in
this Paragraph (B).
SEVENTH: The Company may from time to time, pursuant to authorization by
the Board of Directors and without action by the shareholders, purchase or
otherwise acquire shares of the Company of any class or classes in such manner,
upon such terms and in such amounts as the Board of Directors shall determine;
subject, however, to such limitation or restriction, if any, as is contained in
the express terms of any class of shares of the Company outstanding at the time
of the purchase or acquisition in question.
EIGHTH: No shareholder of the Company may cumulate his voting power.
NINTH: These Amended and Restated Articles of Incorporation shall supersede
and take the place of the heretofore existing Articles of Incorporation of the
Company and all amendments thereto.
13
