EXHIBIT 3.1
(As amended and restated through October 20, 1998)
ELI LILLY AND COMPANY
(AN INDIANA CORPORATION)
AMENDED ARTICLES OF INCORPORATION
1. The name of the Corporation shall be
ELI LILLY AND COMPANY.
2. The purposes for which the Corporation is formed are to engage
in any lawful act or activity for which a corporation may be organized under the
Indiana Business Corporation Law.
3. The period during which the Corporation is to continue as a
corporation is perpetual.
4. The total number of shares which the Corporation shall have
authority to issue is 3,205,000,000 shares, consisting of 3,200,000,000 shares
of Common Stock and 5,000,000 shares of Preferred Stock. The Corporation's
shares do not have any par or stated value, except that, solely for the purpose
of any statute or regulation imposing any tax or fee based upon the
capitalization of the Corporation, each of the Corporation's shares shall be
deemed to have a par value of $0.01 per share.
5. The following provisions shall apply to the Corporation's
shares:
(a) The Corporation shall have the power to acquire (by
purchase, redemption, or otherwise), hold, own, pledge, sell, transfer,
assign, reissue, cancel, or otherwise dispose of the shares of the
Corporation in the manner and to the extent now or hereafter permitted
by the laws of the State of Indiana (but such power shall not imply an
obligation on the part of the owner or holder of any share to sell or
otherwise transfer such share to the Corporation), including the power
to purchase, redeem, or otherwise acquire the Corporation's own shares,
directly or indirectly, and without pro rata treatment of the owners or
holders of any class or series of shares, unless, after giving effect
thereto, the Corporation would not be able to pay its debts as they
become due in the usual course of business or the Corporation's total
assets would be less than its total liabilities (and without regard to
any amounts that would be needed, if the Corporation were to be
dissolved at the time of the purchase, redemption, or other
acquisition, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those of the
holders of the shares of the Corporation being purchased, redeemed, or
otherwise acquired, unless otherwise expressly provided with respect to
a series of Preferred Stock). Shares of the Corporation purchased,
redeemed, or otherwise acquired by it
shall constitute authorized but unissued shares, unless prior to any
such purchase, redemption, or other acquisition, or within thirty (30)
days thereafter, the Board of Directors adopts a resolution providing
that such shares constitute authorized and issued but not outstanding
shares.
(b) Preferred Stock of any series that has been redeemed
(whether through the operation of a retirement or sinking fund or
otherwise) or purchased by the Corporation, or which, if convertible,
have been converted into shares of the Corporation of any other class
or series, may be reissued as a part of such series or of any other
series of Preferred Stock, subject to such limitations (if any) as may
be fixed by the Board of Directors with respect to such series of
Preferred Stock in accordance with the provisions of Article 7 of these
Amended Articles of Incorporation.
(c) The Board of Directors of the Corporation may dispose
of, issue, and sell shares in accordance with, and in such amounts as
may be permitted by, the laws of the State of Indiana and the
provisions of these Amended Articles of Incorporation and for such
consideration, at such price or prices, at such time or times and upon
such terms and conditions (including the privilege of selectively
repurchasing the same) as the Board of Directors of the Corporation
shall determine, without the authorization or approval by any
shareholders of the Corporation. Shares may be disposed of, issued, and
sold to such persons, firms, or corporations as the Board of Directors
may determine, without any preemptive or other right on the part of the
owners or holders of other shares of the Corporation of any class or
kind to acquire such shares by reason of their ownership of such other
shares.
6. The following provisions shall apply to the Common Stock:
(a) Except as otherwise provided by the Indiana Business
Corporation Law and subject to such shareholder disclosure and
recognition procedures (which may include voting prohibition sanctions)
as the Corporation may by action of its Board of Directors establish,
shares of Common Stock shall have unlimited voting rights and each
outstanding share of Common Stock shall, when validly issued by the
Corporation, entitle the record holder thereof to one vote at all
shareholders' meetings on all matters submitted to a vote of the
shareholders of the Corporation.
(b) Shares of Common Stock shall be equal in every
respect insofar as their relationship to the Corporation is concerned,
but such equality of rights shall not imply equality of treatment as to
redemption or other acquisition of shares by the Corporation. Subject
to the rights of the holders of any outstanding series of Preferred
Stock, the holders of Common Stock shall be entitled to share ratably
in such dividends or other distributions (other than purchases,
redemptions, or other acquisitions of shares by the Corporation), if
any, as are declared and paid from time to time on the Common Stock at
the discretion of the Board of Directors.
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(c) In the event of any liquidation, dissolution, or
winding up of the Corporation, either voluntary or involuntary, after
payment shall have been made to the holders of any outstanding series
of Preferred Stock of the full amount to which they shall be entitled,
the holders of Common Stock shall be entitled, to the exclusion of the
holders of the Preferred Stock of any and all series, to share, ratably
according to the number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution to its
shareholders.
7. The Board of Directors is hereby expressly authorized to
provide, out of the unissued shares of Preferred Stock, for one or more series
of Preferred Stock. Before any shares of any such series are issued, the Board
of Directors shall fix, and hereby is expressly empowered to fix, by the
adoption and filing in accordance with the Indiana Business Corporation Law, of
an amendment or amendments to these Amended Articles of Incorporation, the terms
of such Preferred Stock or series of Preferred Stock, including the following:
(a) the designation of such series, the number of shares
to constitute such series and the stated value thereof if different
from the par value thereof;
(b) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights, which may be general or limited and
may include the right, under specified circumstances, to elect
additional directors;
(c) the dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if so, from what
dates, the conditions and dates upon which such dividends shall be
payable, the preference or relation which such dividends shall bear to
the dividends payable on any shares of stock of any other class or any
other series of Preferred Stock;
(d) whether the shares of such series shall be subject to
redemption by the Corporation and, if so, the times, prices and other
conditions of such redemption;
(e) the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series in, the
voluntary or involuntary liquidation, dissolution or winding up, or
upon any distribution of the assets, of the Corporation;
(f) whether the shares of such series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to
and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions
relative to the operation thereof;
(g) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other
class or any other series of Preferred Stock or any other securities
(whether or not issued by the
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Corporation) and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding upon the
payment of dividends or the making of other distributions on, and upon
the purchase, redemption or other acquisition by the Corporation of,
the Common Stock or shares of stock of any other class or any other
series of Preferred Stock;
(i) the conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the issue of any
additional stock, including additional shares of such series or of any
other series of Preferred Stock or of any other class of stock; and
(j) any other powers, preferences and relative,
participating, optional and other special rights, and any
qualifications, limitations and restrictions thereof.
Except to the extent otherwise expressly provided in these Amended Articles of
Incorporation or required by law (i) no share of Preferred Stock shall have any
voting rights other than those which shall be fixed by the Board of Directors
pursuant to this Article 7 and (ii) no share of Common Stock shall have any
voting rights with respect to any amendment to the terms of any series of
Preferred Stock; provided however, that in the case of this clause (ii) the
terms of such series of Preferred Stock, as so amended, could have been
established without any vote of any shares of Common Stock.
8. The Corporation shall have the power to declare and pay
dividends or other distributions upon the issued and outstanding shares of the
Corporation, subject to the limitation that a dividend or other distribution may
not be made if, after giving it effect, the Corporation would not be able to pay
its debts as they become due in the usual course of business or the
Corporation's total assets would be less than its total liabilities (and without
regard to any amounts that would be needed, if the Corporation were to be
dissolved at the time of the dividend or other distribution, to satisfy the
preferential rights upon dissolution of shareholders whose preferential rights
are superior to those of the holders of shares receiving the dividend or other
distribution, unless otherwise expressly provided with respect to any
outstanding series of Preferred Stock). The Corporation shall have the power to
issue shares of one class or series as a share dividend or other distribution in
respect of that class or series or one or more other classes or series.
9. The following provisions are inserted for the management of
the business and for the conduct of the affairs of the Corporation, and it is
expressly provided that the same are intended to be in furtherance and not in
limitation or exclusion of the powers conferred by statute:
(a) The number of directors of the Corporation, exclusive
of directors who may be elected by the holders of any one or more
series of Preferred Stock
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pursuant to Article 7(b) (the "Preferred Stock Directors"), shall not
be less than nine, the exact number to be fixed from time to time
solely by resolution of the Board of Directors, acting by not less than
a majority of the directors then in office.
(b) The Board of Directors (exclusive of Preferred Stock
Directors) shall be divided into three classes, with the term of office
of one class expiring each year. At the annual meeting of shareholders
in 1985, five directors of the first class shall be elected to hold
office for a term expiring at the 1986 annual meeting, five directors
of the second class shall be elected to hold office for a term expiring
at the 1987 annual meeting, and six directors of the third class shall
be elected to hold office for a term expiring at the 1988 annual
meeting. Commencing with the annual meeting of shareholders in 1986,
each class of directors whose term shall then expire shall be elected
to hold office for a three-year term. In the case of any vacancy on the
Board of Directors, including a vacancy created by an increase in the
number of directors, the vacancy shall be filled by election of the
Board of Directors with the director so elected to serve for the
remainder of the term of the director being replaced or, in the case of
an additional director, for the remainder of the term of the class to
which the director has been assigned. All directors shall continue in
office until the election and qualification of their respective
successors in office. When the number of directors is changed, any
newly created directorships or any decrease in directorships shall be
so assigned among the classes by a majority of the directors then in
office, though less than a quorum, as to make all classes as nearly
equal in number as possible. No decrease in the number of directors
shall have the effect of shortening the term of any incumbent director.
Election of directors need not be by written ballot unless the By-laws
so provide.
(c) Any director or directors (exclusive of Preferred
Stock Directors) may be removed from office at any time, but only for
cause and only by the affirmative vote of at least 80% of the votes
entitled to be cast by holders of all the outstanding shares of Voting
Stock (as defined in Article 13 hereof), voting together as a single
class.
(d) Notwithstanding any other provision of these Amended
Articles of Incorporation or of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class of Voting Stock required by law or
these Amended Articles of Incorporation, the affirmative vote of at
least 80% of the votes entitled to be cast by holders of all the
outstanding shares of Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal this Article 9.
10. The Board of Directors of the Corporation is exclusively
authorized (a) to adopt, repeal, alter or amend the By-laws of the Corporation
by the vote of a majority of the entire Board of Directors and (b) to adopt any
By-laws which the Board of Directors may deem necessary or desirable for the
efficient conduct of the affairs of the Corporation, including, without
limitation, provisions governing the conduct of, and the matters which may
properly be brought before, meetings of the shareholders and
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provisions specifying the manner and extent to which prior notice shall be given
of the submission of proposals to be submitted at any meeting of shareholders or
of nominations of elections of directors to be held at any such meeting.
11. The Corporation shall, to the fullest extent permitted by
applicable law now or hereafter in effect, indemnify any person who is or was a
director, officer or employee of the Corporation (an "Eligible Person") and who
is or was involved in any manner (including, without limitation, as a party or a
witness) or is threatened to be made so involved in any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, any
action, suit or proceeding by or in the right of the Corporation to procure a
judgment in its favor) (a "Proceeding") by reason of the fact that such person
is or was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
partner, member, manager, trustee, fiduciary or agent of another corporation,
partnership, joint venture, limited liability company, trust or other enterprise
(including, without limitation, any employee benefit plan), against all expenses
(including attorneys' fees), judgments, fines or penalties (including excise
taxes assessed with respect to an employee benefit plan) and amounts paid in
settlement actually and reasonably incurred by such Eligible Person in
connection with such Proceeding; provided, however, that the foregoing shall not
apply to a Proceeding commenced by an Eligible Person except to the extent
provided otherwise in the Corporation's By-laws or an agreement with an Eligible
Person. The Corporation may establish provisions supplemental to or in
furtherance of the provisions of this Article 11, including, but not limited to,
provisions concerning the determination of any Eligible Person to
indemnification, mandatory or permissive advancement of expenses to an Eligible
Person incurred in connection with a Proceeding, the effect of any change in
control of the Corporation on indemnification and advancement of expenses and
the funding or other payment of amounts necessary to effect indemnification and
advancement of expenses, in the By-laws of the Corporation or in agreements with
any Eligible Person.
12. Except as otherwise expressly provided for in these Amended
Articles of Incorporation, the Corporation reserves the right to amend, alter or
repeal any provision contained in these Amended Articles of Incorporation, in
the manner now or hereafter prescribed by law, and all rights conferred upon
shareholders herein are subject to this reservation.
13. In addition to all other requirements imposed by law and these
Amended Articles and except as otherwise expressly provided in paragraph (c) of
this Article 13, none of the actions or transactions listed below shall be
effected by the Corporation, or approved by the Corporation as a shareholder of
any majority-owned subsidiary of the Corporation if, as of the record date for
the determination of the shareholders entitled to vote thereon, any Related
Person (as hereinafter defined) exists, unless the applicable requirements of
paragraphs (b), (c), (d), (e), and (f) of this Article 13 are satisfied.
(a) The actions or transactions within the scope of this
Article 13 are as follows:
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(i) any merger or consolidation of the Corporation or
any of its subsidiaries into or with such Related Person;
(ii) any sale, lease, exchange, or other disposition
of all or any substantial part of the assets of the
Corporation or any of its majority-owned subsidiaries to or
with such Related Person;
(iii) the issuance or delivery of any Voting Stock
(as hereinafter defined) or of voting securities of any of the
Corporation's majority-owned subsidiaries to such Related
Person in exchange for cash, other assets or securities, or a
combination thereof;
(iv) any voluntary dissolution or liquidation of the
Corporation;
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its subsidiaries, or any other transaction (whether or not
with or otherwise involving a Related Person) that has the
effect, directly or indirectly, of increasing the
proportionate share of any class or series of capital stock of
the Corporation, or any securities convertible into capital
stock of the Corporation or into equity securities of any
subsidiary, that is beneficially owned by any Related Person;
or
(vi) any agreement, contract, or other arrangement
providing for any one or more of the actions specified in the
foregoing clauses (i) through (v).
(b) The actions and transactions described in paragraph
(a) of this Article 13 shall have been authorized by the affirmative
vote of at least 80% of all of the votes entitled to be cast by holders
of the outstanding shares of Voting Stock, voting together as a single
class.
(c) Notwithstanding paragraph (b) of this Article 13, the
80% voting requirement shall not be applicable if any action or
transaction specified in paragraph (a) is approved by the Corporation's
Board of Directors and by a majority of the Continuing Directors (as
hereinafter defined).
(d) Unless approved by a majority of the Continuing
Directors, after becoming a Related Person and prior to consummation of
such action or transaction.
(i) the Related Person shall not have acquired from
the Corporation or any of its subsidiaries any newly issued or
treasury shares of capital stock or any newly issued
securities convertible into capital stock of the Corporation
or any of its majority-owned subsidiaries, directly or
indirectly (except upon conversion of convertible securities
acquired by it prior to becoming a Related Person or as a
result of a pro rata stock
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dividend or stock split or other distribution of stock to all
shareholders pro rata);
(ii) such Related Person shall not have 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
Corporation or any of its majority-owned subsidiaries, or made
any major changes in the Corporation's or any of its
majority-owned subsidiaries' businesses or capital structures
or reduced the current rate of dividends payable on the
Corporation's capital stock below the rate in effect
immediately prior to the time such Related Person became a
Related Person; and
(iii) such Related Person shall have taken all
required actions within its power to ensure that the
Corporation's Board of Directors included representation by
Continuing Directors at least proportionate to the voting
power of the shareholdings of Voting Stock of the
Corporation's Remaining Public Shareholders (as hereinafter
defined), with a Continuing Director to occupy an additional
Board position if a fractional right to a director results
and, in any event, with at least one Continuing Director to
serve on the Board so long as there are any Remaining Public
Shareholders.
(e) A proxy statement responsive to the requirements of
the Securities Exchange Act of 1934, as amended, whether or not the
Corporation is then subject to such requirements, shall be mailed to
the shareholders of the Corporation for the purpose of soliciting
shareholder approval of such action or transaction and shall contain at
the front thereof, in a prominent place, any recommendations as to the
advisability or inadvisability of the action or transaction which the
Continuing Directors may choose to state 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 not) of the terms of the action or transaction from a
financial point of view to the Remaining Public Shareholders, such
investment banking firm to be paid a reasonable fee for its services by
the Corporation. The requirements of this paragraph (e) shall not apply
to any such action or transaction which is approved by a majority of
the Continuing Directors.
(f) For the purpose of this Article 13
(i) the term "Related Person" shall mean any other
corporation, person, or entity which beneficially owns or
controls, directly or indirectly, 5% or more of the
outstanding shares of Voting Stock, and any Affiliate or
Associate (as those terms are defined in the General Rules and
Regulations under the Securities Exchange Act of 1934) of a
Related Person; provided, however, that the term Related
Person shall not include (a) the Corporation or any of its
subsidiaries, (b) any profit-sharing,
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employee stock ownership or other employee benefit plan of the
Corporation or any subsidiary of the Corporation or any
trustee of or fiduciary with respect to any such plan when
acting in such capacity, or (c) Lilly Endowment, Inc.; and
further provided, that no corporation, person, or entity shall
be deemed to be a Related Person solely by reason of being an
Affiliate or Associate of Lilly Endowment, Inc.;
(ii) a Related Person shall be deemed to own or
control, directly or indirectly, any outstanding shares of
Voting Stock owned by it or any Affiliate or Associate of
record or beneficially, including without limitation shares
a. which it has the right to acquire
pursuant to any agreement, or upon exercise of
conversion rights, warrants, or options, or otherwise
or
b. which are beneficially owned, directly or
indirectly (including shares deemed owned through
application of clause a. above), by any other
corporation, person, or other entity with which it or
its Affiliate or Associate has any agreement,
arrangement, or understanding for the purpose of
acquiring, holding, voting, or disposing of Voting
Stock, or which is its Affiliate (other than the
Corporation) or Associate (other than the
Corporation);
(iii) the term "Voting Stock" shall mean all shares
of any class of capital stock of the Corporation which are
entitled to vote generally in the election of directors;
(iv) the term "Continuing Director" shall mean a
director who is not an Affiliate or Associate or
representative of a Related Person and who was a member of the
Board of Directors of the Corporation immediately prior to the
time that any Related Person involved in the proposed action
or transaction became a Related Person or a director who is
not an Affiliate or Associate or representative of a Related
Person and who was nominated by a majority of the remaining
Continuing Directors; and
(v) the term "Remaining Public Shareholders" shall
mean the holders of the Corporation's capital stock other than
the Related Person.
(g) A majority of the Continuing Directors of the
Corporation shall have the power and duty to determine for the purposes
of this Article 13, on the basis of information then known to the
Continuing Directors, whether (i) any Related Person exists or is an
Affiliate or an Associate of another and (ii) any proposed sale, lease,
exchange, or other disposition of part of the assets of the Corporation
or any majority-owned subsidiary involves a substantial part of the
assets of the Corporation or any of its subsidiaries. Any such
determination by the Continuing Directors shall be conclusive and
binding for all purposes.
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(h) Nothing contained in this Article 13 shall be
construed to relieve any Related Person or any Affiliate or Associate
of any Related Person from any fiduciary obligation imposed by law.
(i) The fact that any action or transaction complies with
the provisions of this Article 13 shall not be construed to waive or
satisfy any other requirement of law or these Amended Articles of
Incorporation or to impose any fiduciary duty, obligation, or
responsibility on the Board of Directors or any member thereof, to
approve such action or transaction 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, with respect to evaluations
of or actions and responses taken with respect to such action or
transaction. The Board of Directors of the Corporation, when evaluating
any actions or transactions described in paragraph (a) of this Article
13, shall, in connection with the exercise of its judgment in
determining what is in the best interests of the Corporation and its
shareholders, give due consideration to all relevant factors, including
without limitation the social and economic effects on the employees,
customers, suppliers, and other constituents of the Corporation and its
subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located.
(j) Notwithstanding any other provision of these Amended
Articles of Incorporation or of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class of Voting Stock required by law or
these Amended Articles of Incorporation, the affirmative vote of the
holders of at least 80% of the votes entitled to be cast by holders of
all the outstanding shares of Voting Stock, voting together as a single
class, shall be required to alter, amend, or repeal this Article 13.
14. A total of 1,500,000 shares of the 5,000,000 shares of
authorized Preferred Stock are designated as "Series B Junior Participating
Preferred Stock" (the "Series B Preferred Stock"). Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided that no
decrease shall reduce the number of shares of Series B Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series B Preferred Stock. The Series B Preferred
Stock shall possess the rights, preferences, qualifications, limitations, and
restrictions set forth below:
(a) The holders of shares of Series B Preferred Stock
shall have the following rights to dividends and distributions:
(i) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Series B Preferred Stock
with respect to dividends, the holders of shares of Series B
Preferred Stock, in preference to the holders of Common Stock,
without par value (the "Common Stock"), of the
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Corporation, and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly
dividends payable in cash on the tenth 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 or fraction of a share of Series
B Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $10 or (b) subject
to the provision for adjustment hereinafter set forth, 1,000
times the aggregate per share amount of all cash dividends,
and 1,000 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 shares of 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 or fraction of a
share of Series B Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of 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 shares of 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 Series B Preferred Stock were entitled immediately
prior to such event under clause (b) 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.
(ii) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $10 per share on the
Series B Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B Preferred Stock
from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, 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
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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 Series B 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. Dividends paid on the shares of
Series B Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of
holders of shares of Series B Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
(b) The holders of shares of Series B Preferred Stock
shall have the following voting rights:
(i) Subject to the provision for adjustment
hereinafter set forth, each share of Series B Preferred Stock
shall entitle the holder thereof to 1000 votes on all matters
submitted to a vote of the stockholders of the Corporation. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of 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 shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to
which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number 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.
(ii) Except as otherwise provided herein, in any
other Articles of Amendment creating a series of Preferred
Stock or any similar stock, or by law, the holders of shares
of Series B Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the
Corporation.
(iii) Except as set forth herein, or as otherwise
provided by law, holders of Series B Preferred Stock shall
have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any
corporate action.
(c) The Corporation shall be subject to the following
restrictions:
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(i) Whenever quarterly dividends or other
dividends or distributions payable on the Series B Preferred
Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series B Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
a. declare or pay dividends, or make
any other distributions, on any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series
B Preferred Stock;
b. declare or pay dividends, or make
any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series B Preferred Stock, except dividends paid
ratably on the Series B Preferred Stock and all such
parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
c. redeem or purchase or otherwise
acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preferred Stock; or
d. redeem or purchase or otherwise
acquire for consideration any shares of Series B
Preferred Stock, or any shares of stock ranking on a
parity with the Series B Preferred Stock, except in
accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration
of the respective annual dividend rates and other
relative rights and preferences of the respective
series and classes, shall determine in good faith
will result in fair and equitable treatment among the
respective series or classes.
(ii) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (i) of this
Article 14(c), purchase or otherwise acquire such shares at
such time and in such manner.
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(d) Any shares of Series B Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and restrictions on
issuance set forth herein, in the Articles of Incorporation, or in any
other Articles of Amendment creating a series of Preferred Stock or any
similar stock or as otherwise required by law.
(e) Upon any liquidation, dissolution or winding up of
the Corporation, no distribution shall be made (i) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Stock
unless, prior thereto, the holders of shares of Series B Preferred
Stock shall have received the greater of (a) $1000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (b) an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1000 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (ii) to
the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock, except distributions made ratably on the
Series B Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon
such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of 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
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were entitled immediately
prior to such event under the proviso in clause (i) 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.
(f) In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
share of Series B Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 1000 times the aggregate
amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by
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payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange
or change of shares of Series B Preferred Stock 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.
(g) The shares of Series B Preferred Stock shall not be
redeemable.
(h) The Series B Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
(i) The Amended Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series
B Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series B Preferred Stock, voting together as a
single class.
(j) In the event that the Rights Agreement dated as of
July 20, 1998 between the Corporation and First Chicago Trust Company
of New York, as Rights Agent (or any successor Rights Agent) is
terminated or expires prior to the issuance of any shares of Series B
Preferred Stock, all shares of Series B Preferred Stock shall become
authorized but unissued shares of Preferred Stock and may be reissued
as part of a new series of Preferred Stock subject to the conditions
and restrictions on issuance set forth in the Articles of Incorporation
or in any other Articles of Amendment creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
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