Exhibit (3)A
RESTATED
ARTICLES OF INCORPORATION
OF
DAYTON HUDSON CORPORATION
(AS AMENDED THROUGH APRIL 30, 1998)
ARTICLE I
The name of the corporation is Dayton Hudson Corporation.
ARTICLE II
The location and post-office address of the registered office of the corporation
in the State of Minnesota is number 777 Nicollet Mall in the City of
Minneapolis, County of Hennepin.
ARTICLE III
The total authorized number of shares of the corporation is 3,005,000,000. The
shares are classified in two classes, consisting of 5,000,000 shares of
Preferred Stock of the par value of $0.01 per share and 3,000,000,000 shares of
Common Stock of the par value of $0.1667 per share.
The Board of Directors is authorized to establish one or more series of
Preferred Stock, setting forth the designation of each such series, and fixing
the relative rights and preferences of each such series.
Each holder of record of Common Stock shall be entitled to one vote for each
share of Common Stock held by such shareholder on every matter voted on at every
meeting of shareholders of the corporation. No holder of shares of stock of any
class or series shall be entitled to cumulate his/her votes in any election of
directors.
No holder of shares of stock of any class or series shall be entitled as such,
as a matter of right, to subscribe for or purchase any part of any new or
additional issue of shares of stock of any class or series whatsoever or of any
securities convertible into or exchangeable for any shares of stock of any class
or series whatsoever, whether now or hereafter authorized or issued for cash or
other consideration.
ARTICLE IV
A. In addition to any affirmative vote required by law or these Articles of
Incorporation, and except as otherwise expressly provided in Section B of
this Article IV, a Business Combination (as hereinafter defined) shall
require the affirmative vote of not less than seventy-five percent (75%) of
the votes entitled to be cast by the holders of all then outstanding shares
of Voting Stock (as hereinafter defined), voting together as a single
class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or separate class
vote may be specified, by law or by any other provision of these Articles
of Incorporation or in any agreement with any national securities exchange
or otherwise.
B. The provisions of Section A of this Article IV shall not be applicable to
any particular Business Combination, and such Business Combination shall
require only such affirmative vote, if any, as is required by law or by any
other provision of these Articles of Incorporation or in any agreement with
any national securities exchange or otherwise, if the conditions specified
in either of the following Paragraphs 1 or 2 are met:
1. The Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The aggregate amount of cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of Common Stock in such Business
Combination shall be at least equal to the higher amount
determined under clauses (i) and (ii) below:
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Shareholder (as hereinafter defined) for any share of
Common Stock in connection with the acquisition by the
Interested Shareholder of beneficial ownership of shares
of Common Stock (a) within the two-year period immediately
prior to the date of the first public announcement of the
proposed Business Combination (the "Announcement Date") or
(b) in the transaction in which it became an Interested
Shareholder, whichever is higher; and
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(ii) the fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (such latter
date being referred to herein as the "Determination
Date"), whichever is higher.
b. The aggregate amount of cash and the Fair Market Value as of the
date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders
of shares of any class or series of outstanding Capital Stock (as
hereinafter defined), other than Common Stock, shall be at least
equal to the highest amount determined under clauses (i), (ii)
and (iii) below:
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Shareholder for any share of such class or series of
Capital Stock in connection with the acquisition by the
Interested Shareholder of beneficial ownership of shares
of such class or series of Capital Stock (a) within the
two-year period immediately prior to the Announcement Date
or (b) in the transaction in which it became an Interested
Shareholder, whichever is higher;
(ii) the Fair Market Value per share of such class or series of
Capital Stock on the Announcement Date or on the
Determination Date, whichever is higher; and
(iii) (if applicable) the highest preferential amount per share
to which the holders of shares of such class or series of
Capital Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the corporation, regardless
of whether the Business Combination to be consummated
constitutes such an event.
The provisions of this Paragraph 2.b shall be required to be met
with respect to every class or series of outstanding Capital
Stock, whether or not the Interested Shareholder has previously
acquired beneficial ownership of any shares of a particular class
or series of Capital Stock.
c. The consideration to be received by holders of a particular class
or series of outstanding Capital Stock shall be in cash or in the
same
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form as previously has been paid by or on behalf of the
Interested Shareholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class or
series of Capital Stock. If the consideration so paid for shares
of any class or series of Capital Stock varied as to form, the
form of consideration for such class or series of Capital Stock
shall be either cash or the form used to acquire beneficial
ownership of the largest number of shares of such class or series
of Capital Stock previously acquired by the Interested
Shareholder. The price determined in accordance with Paragraphs
2.a and 2.b of Section B of this Article IV shall be subject to
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
d. After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination: (i) there shall have been no failure to declare and
pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance with the terms
of any outstanding Capital Stock, except as approved by a
majority of the Continuing Directors; (ii) there shall have been
no reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any stock dividend, stock
split, combination of shares or similar event), except as
approved by a majority of the Continuing Directors; (iii) there
shall have been an increase in the annual rate of dividends paid
on the Common Stock as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of
reducing the number of outstanding shares of Common Stock, unless
the failure to increase such annual rate is approved by a
majority of the Continuing Directors; and (iv) except as approved
by a majority of the Continuing Directors, such Interested
Shareholder shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the
transaction that results in such Interested Shareholder becoming
an Interested Shareholder and except in a transaction that, after
giving effect thereto, would not result in any increase in the
Interested Shareholder's percentage beneficial ownership of any
class or series of Capital Stock.
e. After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately as a
shareholder of the corporation), or any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax
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advantages provided by the corporation, whether in anticipation
of or in connection with such Business Combination or otherwise.
f. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder
(the "Act") (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to all shareholders of the
corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to the Act or
subsequent provisions). The proxy or information statement shall
contain on the first page thereof, in a prominent place, any
statement as to the advisability (or inadvisability) of the
Business Combination that a majority of the Continuing Directors
may choose to make and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment banking firm
selected by a majority of the Continuing Directors as to the
fairness (or lack of fairness) of the terms of the Business
Combination from a financial point of view to the holders of the
outstanding shares of Capital Stock other than the Interested
Shareholder and its Affiliates (as hereinafter defined) or
Associates (as hereinafter defined).
g. Such Interested Shareholder shall not have made or caused to be
made any major change in the corporation's business or equity
capital structure without the approval of a majority of the
Continuing Directors.
C. For the purposes of this Article IV:
1. The term "Business Combination" shall mean:
a. any merger, consolidation or statutory exchange of shares of the
corporation or any Subsidiary (as hereinafter defined) with (i)
any Interested Shareholder or (ii) any other corporation (whether
or not itself an Interested Shareholder) which is or after such
merger, consolidation or statutory share exchange would be an
Affiliate or Associate of an Interested Shareholder, provided,
however, that the foregoing shall not include the merger of a
wholly-owned Subsidiary of the corporation into the corporation
or the merger of two or more wholly-owned Subsidiaries of the
corporation; or
b. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to
or with
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an Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder of any assets of the corporation or any
Subsidiary equal to or greater than ten percent (10%) of the book
value of the consolidated assets of the corporation; or
c. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to
or with the corporation or any Subsidiary of any assets of any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder equal to or greater than ten percent (10%)
of the book value of the consolidated assets of the corporation;
or
d. the issuance or transfer by the corporation or any Subsidiary (in
one transaction or a series of transactions) to any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder of any securities of the corporation (except pursuant
to stock dividends, stock splits, or similar transactions which
would not have the effect, directly or indirectly, of increasing
the proportionate share of any class or series of Capital Stock,
or any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder) or of any securities of a Subsidiary
(except pursuant to a pro rata distribution to all holders of
Common Stock of the Corporation); or
e. the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder; or
f. any transaction (whether or not with or otherwise involving an
Interested Shareholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or
series of Capital Stock, or any securities convertible into
Capital Stock or into equity securities of any Subsidiary, that
is beneficially owned by any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder, including,
without limitation any reclassification of securities (including
any reverse stock split), or recapitalization of the corporation,
or any merger, consolidation or statutory exchange of shares of
the corporation with any of its Subsidiaries; or
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g. any agreement, contract or other arrangement or understanding
providing for any one or more of the actions specified in the
foregoing clauses (a) to (f).
2. The term "Capital Stock" shall mean all capital stock of the
corporation authorized to be issued from time to time under Article
III of these Articles of Incorporation. The term "Voting Stock" shall
mean all Capital Stock of the corporation entitled to vote generally
in the election of directors of the corporation.
3. The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and
any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding,
directly or indirectly, for the purpose of acquiring, holding, voting
or disposing of Capital Stock.
4. The term "Interested Shareholder" shall mean any person (other than
the corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the
corporation or any Subsidiary or any trustee of or fiduciary with
respect to any such plan when acting in such capacity) who (a) is the
beneficial owner of Voting Stock representing ten percent (10%) or
more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or (b) is an Affiliate or
Associate of the corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial
owner of Voting Stock representing ten percent (10%) or more of the
votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock; or (c) is an assignee of or has otherwise
succeeded to any shares of Voting Stock which were at any time within
the two-year period immediately prior to the date in question
beneficially owned by any Interested Shareholder, if such assignment
or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
5. A person shall be a "beneficial owner" of any Capital Stock (a) which
such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates
or Associates has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or subject only to the
passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or (iii) the
right to dispose or direct the disposition of,
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pursuant to any agreement, arrangement or understanding; or (c) which
are beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Capital stock. For the
purpose of determining whether a person is an interested Shareholder
pursuant to Paragraph 4 of this Section C, the number of shares of
Capital Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of this
Paragraph 5, but shall not include any other shares of Capital Stock
that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, exchange rights,
warrants or options, or otherwise.
6. The term "Affiliate", used to indicate a relationship with a specified
person, shall mean a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under
common control with, such specified person. The term "Associate",
used to indicate a relationship with a specified person, shall mean
(a) any person (other than the corporation or a Subsidiary) of which
such specified person is an officer or partner or is, directly or
indirectly, the beneficial owner of ten percent (10%) or more of any
class of equity securities, (b) any trust or other estate in which
such specified person has a substantial beneficial interest or as to
which such specified person serves as trustee or in a similar
fiduciary capacity, (c) any relative or spouse of such specified
person or any relative of such spouse, who has the same home as such
specified person or who is a director or officer of the corporation or
any Subsidiary, and (d) any person who is a director or officer of
such specified person or any of its parents or subsidiaries (other
than the corporation or a Subsidiary).
7. The term "Subsidiary" shall mean any corporation of which a majority
of any class of equity security is beneficially owned, directly or
indirectly, by the corporation; provided, however, that for the
purposes of Paragraph 4 of this Section C, the term "Subsidiary" shall
mean only a corporation of which a majority of each class of equity
security is beneficially owned, directly or indirectly, by the
corporation.
8. The term "Continuing Director" shall mean any member of the Board of
Directors of the corporation, while such person is a member of the
Board of Directors, who was a member of the Board of Directors prior
to the time that the Interested Shareholder involved in the Business
Combination in question became an Interested Shareholder, and any
member of the Board of Directors, while such person is a member of the
Board of Directors, whose election, or nomination for election by the
corporation's shareholders, was approved by a vote of a majority of
the Continuing
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Directors; provided, however, that in no event shall an Interested
Shareholder involved in the Business Combination in question or any
Affiliate, Associate or representative of such Interested Shareholder,
be deemed to be a Continuing Director.
9. The term "Fair Market Value" shall mean (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape on the New York Stock Exchange, or, if such stock is
not listed on such Exchange, on the principal United States securities
exchange registered under the Act on which such stock is listed, or,
if such stock is not listed on any such exchange, the highest closing
bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any similar
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith;
and (c) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined in
good faith by a majority of the Continuing Directors.
10. In the event of any Business Combination in which the corporation
survives, the phrase "consideration other than cash to be received" as
used in Paragraphs 2.a and 2.b of Section B of this Article IV shall
include the shares of Common Stock and/or the shares of any other
class or series of Capital Stock retained by the holders of such
shares.
D. The Continuing Directors by majority vote shall have the power to determine
for the purposes of this Article IV, on the basis of information known to
them after reasonable inquiry, (a) whether a person is an Interested
Shareholder, (b) the number of shares of Capital Stock (including Voting
Stock) or other securities beneficially owned by any person, (c) whether a
person is an Affiliate or Associate of another, (d) whether the assets that
are the subject of any Business Combination equal or exceed ten percent
(10%) of the book value of the consolidated assets of the corporation, (e)
whether a proposed plan of dissolution or liquidation is proposed by or on
behalf of an Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder, (f) whether any transaction has the effect,
directly or indirectly, of increasing the proportionate share of any class
or series of Capital Stock, or any securities convertible into Capital
Stock or into equity securities of any Subsidiary, that is beneficially
owned by an Interested Shareholder or any Affiliate or Associate of an
Interested Shareholder, (g) whether any Business Combination satisfies the
conditions set forth in Paragraph 2 of Section B of this Article IV, and
(h) such other matters with
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respect to which a determination is required under this Article IV. Any
such determination made in good faith shall be binding and conclusive on
all parties.
E. Nothing contained in this Article IV shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
F. The fact that any Business Combination complies with the provisions of
Section B of this Article IV shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, or the Continuing Directors, or any of them, to approve such
Business Combination or recommend its adoption or approval to the
shareholders of the corporation, nor shall such compliance limit, prohibit
or otherwise restrict in any manner the Board of Directors, or any member
thereof, or the continuing Directors, or any of them, with respect to
evaluations of or actions and responses taken with respect to such Business
Combination.
G. Notwithstanding any other provisions of these Articles of Incorporation
(and notwithstanding the fact that a lesser percentage or separate class
vote may be specified by law or these Articles of Incorporation), the
affirmative vote of the holders of not less than seventy-five percent (75%)
of the votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provisions inconsistent with,
this Article IV.
ARTICLE V
No director of the corporation shall be personally liable to the corporation or
its shareholders for monetary damages for breach of fiduciary duty as a
director, provided, however, that this Article V shall not eliminate or limit
the liability of a director to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the corporation or its shareholders,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under section 302A.559 or 80A.23
of the Minnesota Statutes, (iv) for any transaction from which the director
derived an improper personal benefit, or (v) for any act or omission occurring
prior to the effective date of this Article V. No amendment to or repeal of
this Article V shall apply to or have any effect on the liability or alleged
liability of any director of the corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
ARTICLE VI
The business and affairs of the corporation shall be managed by or under the
direction of a Board of Directors consisting of not less than five nor more than
twenty-one persons,
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who need not be shareholders. The number of directors may be increased by the
shareholders or Board of Directors or decreased by the shareholders from the
number of directors on the Board of Directors immediately prior to the effective
date of this Article VI; provided, however, that any change in the number of
directors on the Board of Directors (including, without limitation, changes at
annual meetings of shareholders) shall be approved by the affirmative vote of
not less than seventy-five percent (75%) of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock (as defined in Article
IV), voting together as a single class, unless such change shall have been
approved by a a majority of the entire Board of Directors. If such change shall
not have been so approved, the number of directors shall remain the same. The
directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of Directors.
At the 1988 annual meeting of shareholders, Class I directors shall be elected
for a one-year term, Class II directors for a two-year term and Class III
directors for a three-year term. At each succeeding annual meeting of
shareholders beginning in 1989, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class. In no case will
a decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for the year in
which the director's term expires and until a successor shall be elected and
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Removal of a director from office
(including a director named by the Board of Directors to fill a vacancy or newly
created directorship), with or without cause, shall require the affirmative vote
of not less than seventy-five percent (75%) of the votes entitled to be cast by
the holders of all then outstanding shares of Voting Stock, voting together as a
single class. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of such director's predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more classes
of preferred or preference stock issued by the corporation shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of shareholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by or pursuant to the
applicable terms of these Articles of Incorporation, and such directors so
elected shall not be divided into classes pursuant to this Article VI unless
expressly provided by such terms.
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No person (other than a person nominated by or on behalf of the Board of
Directors) shall be eligible for election as a director at any annual or special
meeting of shareholders unless a written request that his or her name be placed
in nomination is received from a shareholder of record by the Secretary of the
corporation not less than 60 days prior to the date fixed for the meeting,
together with the written consent of such person to serve as a director.
Notwithstanding any other provisions of these Articles of Incorporation (and
notwithstanding the fact that a lesser percentage or separate class vote may be
specified by law or these Articles of Incorporation), the affirmative vote of
the holders of not less than seventy-five percent (75%) of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article VI.
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