Exhibit 3.2
V.F. CORPORATION
RESTATED ARTICLES OF INCORPORATION
(Effective as of October 19, 2006)
FIRST: The name of the Corporation is V.F. Corporation.
SECOND: The name and location of its registered agent in this Commonwealth is Corporation
Service Company, Dauphin County.
THIRD: The purpose or purposes for which the Corporation is incorporated is to have unlimited
power to engage in and to do any lawful act concerning any or all lawful business for which
corporations may be incorporated under the Pennsylvania Business Corporation Law.
FOURTH: The term of its existence is perpetual.
FIFTH: This Corporation is authorized to issue two classes of shares to be designated
respectively Preferred Stock and Common Stock; the total number of shares which this
Corporation shall have authority to issue is 325,000,000. The number of shares of Preferred Stock
shall be 25,000,000 and the par value of each share of such class shall be One Dollar ($1.00). The
number of shares of Common Stock shall be 300,000,000, without par value. The stated capital of
this Corporation applicable to the Common Stock shall be One Dollar ($1.00) per share, and any
additional sums heretofore and hereafter received by this Corporation as consideration for shares
of its Common Stock without par value shall be treated as capital surplus. The Board of Directors
is authorized, subject to limitations prescribed by law, to provide by resolution for the issuance
from time to time of the Preferred Stock in one or more series, any or all of which may have full,
limited, multiple, fractional, or no voting rights, and such designations, preferences,
qualifications, privileges, limitations, restrictions, options, conversion rights, and other
special or relative rights as shall be stated in the resolution or resolutions adopted by the Board
of Directors pursuant to the authority hereby expressly vested in such Board.
No holder of any of the shares of stock of the Corporation shall be entitled as a matter of
right to purchase or to subscribe for any unissued stock of any class, or any additional shares of
any class, to be issued by reason of any increase of the authorized capital stock of the
Corporation of any class, or bonds, certificates of indebtedness, debentures, or other securities
convertible into stock of the Corporation or carrying any right to purchase stock of any class, but
any such unissued stock, or such additional authorized issue of any class of stock, or of other
securities convertible into stock or carrying any right to purchase stock, may be issued and
disposed of, pursuant to resolutions of the Board of Directors, to such persons, firms,
corporations, or associations and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its discretion.
Pursuant to the authority conferred upon the Board of Directors by the Articles of
Incorporation of the Corporation, the Board of Directors on October 15, 1997, adopted the
following resolution amending and restating in its entirety, effective as of January 26, 1998, the
Series A Junior Participating Preferred Stock to have the designation, voting powers, preferences
and relative participating, optional and other special rights and qualifications, limitations
and restrictions as follows:
SECTION 1. Designation and Number of Shares. The shares of such series shall be designated
as Series A Participating Cumulative Preferred Stock (the SERIES A PREFERRED STOCK), and the
number of shares constituting such series shall be 2,000,000. Such number of shares of the Series A
Preferred Stock may be increased or decreased by resolution of the Board of Directors; provided
that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares issuable upon exercise or
conversion of outstanding rights, options or other securities issued by the Corporation.
SECTION 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred 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 on March, June, September and
December of 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 any share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater of
(i) $1.00 and (ii) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends or other
distributions and 100 times the aggregate per share amount of all non-cash dividends
or other distributions (other than (A) a dividend payable in shares of Common Stock,
no par value, of the Corporation (the COMMON STOCK) or (B) 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 A Preferred Stock. If the
Corporation shall at any time after January 26, 1998 (the RIGHTS DECLARATION DATE)
pay any dividend on Common Stock payable in shares of Common Stock or effect a
subdivision or combination of the outstanding shares of Common Stock (by
reclassification or otherwise) 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 A
Preferred Stock were entitled immediately prior to such event under clause 2(a)(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) The Corporation shall declare a dividend or distribution on the Series A
Preferred Stock as provided in paragraph 2(a) above immediately after it declares a
dividend or distribution on the Common Stock (other than as described in clauses
2(a)(ii)(A) and 2(a)(ii)(B) above); provided that if no dividend or
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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 (or, with respect to the first Quarterly Dividend Payment
Date, the period between the first issuance of any share or fraction of a share of
Series A Preferred Stock and such first Quarterly Dividend Payment Date), a dividend
of $1.00 per share on the Series A Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of
Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Preferred Stock, unless the date of issue
of such shares is on or before the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue and be
cumulative from the date of issue of such shares, or unless the date of issue is a
date after the record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend and on or before such
Quarterly Dividend Payment Date, in which case 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 shares of Series A 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 A Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon, which
record date shall not be more than 60 days prior to the date fixed for the payment
thereof.
SECTION 3. Voting Rights. In addition to any other voting rights required by law, the holders
of shares of Series A Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share
of Series A Preferred Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of shareholders of the Corporation. If the Corporation
shall at any time after the Rights Declaration Date pay any dividend on Common Stock
payable in shares of Common Stock or effect a subdivision or combination of the
outstanding shares of Common Stock (by reclassification or otherwise) 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 A 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.
(b) Except as otherwise provided herein or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Common Stock
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shall vote together as a single class on all matters submitted to a vote of
shareholders of the Corporation.
(c) (i) If at any time dividends on any Series A Preferred Stock shall be in
arrears in an amount equal to six quarterly dividends thereon, the occurrence of
such contingency shall mark the beginning of a period (herein called a DEFAULT
PERIOD) which shall extend until such time when all accrued and unpaid dividends
for all previous quarterly dividend periods and for the current quarterly dividend
period on all shares of Series A Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period, all holders
of Series A Preferred Stock and any other series of Preferred Stock then
entitled as a class to elect directors, voting together as a single class,
irrespective of series, shall have the right to elect two Directors.
(ii) During any default period, such voting right of the holders of
Series A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph 3(c)(iii) hereof or at any annual meeting of
shareholders, and thereafter at annual meetings of shareholders, provided
that neither such voting right nor the right of the holders of any other
series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of 10%
in number of shares of Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of holders of Common Stock shall
not affect the exercise by holders of Preferred Stock of such voting right.
At any meeting at which holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they shall have
the right, voting as a class, to elect Directors to fill such vacancies, if
any, in the Board of Directors as may then exist up to two Directors or, if
such right is exercised at an annual meeting, to elect two Directors. If the
number which may be so elected at any special meeting does not amount to the
required number, the holders of the Preferred Stock shall have the right to
make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders
of Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A
Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors,
the Board of Directors may order, or any shareholder or shareholders owning
in the aggregate not less than 10% of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request, the
calling of a special meeting of holders of Preferred Stock, which meeting
shall thereupon be called by the President, a Vice President or the
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Secretary of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to vote pursuant to
this paragraph 3(c)(iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his last address
as the same appears on the books of the Corporation. Such meeting shall be
called for a time not earlier than 20 days and not later than 60 days after
such order or request or in default of the calling of such meeting within 60
days after such order or request, such meeting may be called on similar
notice by any shareholder or shareholders owning in the aggregate not less
than 10% of the total number of shares of Preferred Stock outstanding,
irrespective of series. Notwithstanding the provisions of this paragraph
3(c)(iii), no such special meeting shall be called during the period within
60 days immediately preceding the date fixed for the next annual meeting of
shareholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two Directors
voting as a class, after the exercise of which right, (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in paragraph 3(c)(ii) hereof) be filled by
vote of a majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose office shall
have become vacant. References in this paragraph 3(c) to Directors elected
by the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall cease,
(y) the term of any Directors elected by the holders of Preferred Stock as a
class shall terminate, and (z) the number of Directors shall be such number
as may be provided for in the certificate of incorporation or bylaws
irrespective of any increase made pursuant to the provisions of paragraph
3(c)(ii) hereof (such number being subject, however, to change thereafter in
any manner provided by law or in the certificate of incorporation or
bylaws). Any vacancies in the Board of Directors effected by the provisions
of clauses (y) and (z) in the preceding sentence may be filled by a majority
of the remaining Directors.
(d) The Certificate of Incorporation of the Corporation shall not be amended in
any manner (whether by merger or otherwise) so as to adversely affect the powers,
preferences or special rights of the Series A Preferred Stock
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without the affirmative vote of the holders of a majority of the outstanding shares of Series A Preferred Stock, voting separately as a class.
(e) Except as otherwise provided herein, holders of Series A Preferred Stock
shall have no special voting rights, and their consent shall not be required for
taking any corporate action.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on
the Series A 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 outstanding shares of Series A Preferred Stock shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, 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 A Preferred Stock;
(ii) declare or pay dividends on, 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 A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
other 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;
(iii) redeem, purchase or otherwise acquire for value any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A 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 stock of the Corporation
ranking junior (as to dividends and upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(iv) redeem, purchase or otherwise acquire for value any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the
Series A 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 Series A Preferred Stock and all such other parity stock 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.
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(b) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for value any shares of stock of the Corporation
unless the Corporation could, under paragraph 4(a), purchase or otherwise acquire
such shares at such time and in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Preferred Stock redeemed, 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 without designation as to series and may be
reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors as permitted by the Certificate of Incorporation or as otherwise permitted
under Pennsylvania Law.
SECTION 6. Liquidation, Dissolution and Winding Up. Upon any liquidation, dissolution or
winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received $1.00 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment; provided that the
holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of Common Stock, or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such other 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. If the Corporation
shall at any time after the Rights Declaration Date pay any dividend on Common Stock payable in
shares of Common Stock or effect a subdivision or combination of the outstanding shares of Common
Stock (by reclassification or otherwise) 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 A Preferred Stock
were entitled immediately prior to such event under the proviso in clause (1) 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.
SECTION 7. Consolidation, Merger, Etc. If 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 or any other property, then in any such case the
shares of Series A Preferred Stock shall at the same time be similarly exchanged for or changed
into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount of stock, securities, cash or any other property, as the case may
be, into which or for which each share of Common Stock is changed or exchanged. If the Corporation
shall at any time after the Rights Declaration Date pay any dividend on Common Stock payable in
shares of Common Stock or effect a subdivision or combination of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth
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in the preceding sentence with respect to the exchange or change of shares of Series A
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.
SECTION 8. No Redemption. The Series A Preferred Stock shall not be redeemable.
SECTION 9. Rank. The Series A Preferred Stock shall rank junior (as to dividends and upon
liquidation, dissolution and winding up) to all other series of the Corporations preferred stock
except any series that specifically provides that such series shall rank junior to the Series A
Preferred Stock.
SECTION 10. Fractional Shares. Series A Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Stock.
SIXTH: The stockholders of the Corporation shall not have the right to cumulative voting in
the election of directors.
SEVENTH: (A) Except as otherwise expressly provided in section (B) of this Article SEVENTH,
the affirmative vote of the holders of at least 80% of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors
(the Voting Stock), voting together as a single class, shall be required to approve any one or
more of the transactions listed in paragraphs (i) through (vii) of this section (A), and the term
Business Combination as used in this Article SEVENTH shall mean any transaction referred to in
said paragraphs (i) through (vii). Such affirmative vote shall be required, the fact
notwithstanding that no vote may be required or that a lesser percentage may be specified by law or
in any agreement with any national securities exchange or otherwise. The Business Combination
transactions include:
(i) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) an Interested Shareholder (as hereinafter defined) or
(b) any other corporation (whether or not itself an Interested Shareholder) which
is, or after such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions) to an Interested Shareholder or an
Affiliate of an Interested Shareholder of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value of 5% or more of the total assets
of the Corporation and its consolidated Subsidiaries as reflected on the immediately
preceding year-end consolidated balance sheet of the Corporation; or
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(iii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to the Corporation or
any Subsidiary of any assets of an Interested Shareholder or an Affiliate of an
Interested Shareholder having an aggregate Fair Market Value of 5% or more of the
total assets of the Corporation and its consolidated Subsidiaries as reflected on
the immediately preceding year-end consolidated balance sheet of the Corporation; or
(iv) the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation or any
Subsidiary to an Interested Shareholder or an Affiliate of an Interested Shareholder
in exchange for cash, securities or other property (or a combination thereof) having
an aggregate Fair Market Value of 5% or more of the total assets of the Corporation
and its consolidated Subsidiaries as reflected on the immediately preceding year-end
consolidated balance sheet of the Corporation; or
(v) the issuance or transfer by an Interested Shareholder or an Affiliate of an
Interested Shareholder (in one transaction or a series of transactions) of any
securities to the Corporation or any Subsidiary in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value of
5% or more of the total assets of the Corporation and its consolidated Subsidiaries
as reflected on the immediately preceding year-end consolidated balance sheet of the
Corporation; or
(vi) the adoption of any plan or proposal for the liquidation or dissolution of
the Corporation or any Subsidiary proposed by or on behalf of an Interested
Shareholder or an Affiliate of an Interested Shareholder; or
(vii) 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 into or otherwise involving an Interested Shareholder) which has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by an Interested Shareholder or an
Affiliate of an Interested Shareholder.
(B) The provisions of section (A) of this Article SEVENTH shall not be applicable to any
particular Business Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of these Articles of Incorporation, if all of
the conditions specified in either of the following paragraphs (i) and (ii) are met:
(i) The Business Combination shall have been approved prior to its consummation
by a majority of the Disinterested Directors (as hereinafter defined).
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(ii) All of the following conditions shall have been met:
(a) The aggregate amount of the 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 each class
of outstanding capital stock shall be at least equal to the highest of the
following:
(1) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers fees)
paid by the Interested Shareholder for any shares of each such class
of capital stock acquired by it (a) within the two-year period
immediately prior to the date of the first public announcement of the
proposal of the Business Combination (the Announcement Date) or (b)
in the transaction in which it became an Interested Shareholder,
whichever is higher;
(2) (if applicable) the highest preferential amount per share to
which the holders of shares of each such class of capital stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; and
(3) the Fair Market Value per share of each such class of
capital stock on the Announcement Date or on the date on which the
Interested Shareholder became an Interested Shareholder, whichever is
higher.
The provisions of this subparagraph (ii)(a) shall be required to be met
with respect to every class and 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.
(b) The price determined in accordance with sub-paragraph (ii)(a) of
this section (B) shall be subject to appropriate adjustment in the event of
any stock dividend, stock split, combination of shares or similar event.
(c) The consideration to be received by holders of each class of
outstanding capital stock shall be in cash or in the same form as the
Interested Shareholder or an Affiliate of the Interested Shareholder has
previously paid for shares of such class of capital stock. If the
Interested Shareholder or an Affiliate of the Interested Shareholder has
paid for shares of any class of capital stock with varying forms of
consideration, the form of consideration for each share of such class shall
be in cash, to the highest amount per share as was paid in cash to acquire
any shares owned by the Interested Shareholder or any Affiliate of the
Interested
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Shareholder, and the balance of the consideration for each such share
shall be either in cash or in the form used to acquire the largest number of shares of such class previously acquired by the Interested Shareholder or
any Affiliate of the Interested Shareholder.
(d) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination,
except as approved by a majority of the Disinterested Directors: (1) there
shall have been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on any outstanding Preferred Stock; (2) there shall have been (a) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), and (b) an increase in such annual
rate of dividends as necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding shares of the Common Stock; (3) such Interested Shareholder shall have not
become the beneficial owner of any additional shares of Voting Stock except
as part of the transaction which results in such Interested Shareholder
becoming an Interested Shareholder; and (4) such Interested Shareholder
shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(e) 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 (or any subsequent
provisions corresponding to or replacing such Act, rules or regulations
shall be mailed to public stockholders 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 such Act
or subsequent provisions).
(C) For the purposes of this Article SEVENTH:
(i) A person shall mean any individual, firm, corporation or other entity.
(ii) Interested Shareholder shall mean any person (other than the Corporation
or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of 20% or more of
the voting power of the outstanding Voting Stock;
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(b) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 20% or more of the voting power of the
then outstanding Voting Stock; or
(c) is the beneficial owner of 5% or more of the shares of any class 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;
provided, however, that the term Interested Shareholder shall not include
any employee benefit plan of the Corporation or any Subsidiary of the
Corporation or any trustee or fiduciary with respect to any such plan when
acting in the capacity of a trustee or fiduciary.
(iii) A person shall be a beneficial owner of any Voting Stock:
(a) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (1)
the right to acquire (whether such right is exercisable immediately or only
after 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 (2) the right to vote or to direct the
vote pursuant to any agreement, arrangement or understanding, other than
pursuant to a public solicitation of proxies; 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 Voting Stock, other than
pursuant to a public solicitation of proxies.
(iv) For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph (ii) of this section (C), the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed beneficially owned
by such person through application of paragraph (iii) of this section (C) but shall
not include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(v) Affiliate or Associate shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on April 15, 1986.
(vi) Subsidiary means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation;
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provided, however, that for the purposes of the definition of Interested
Shareholder set forth in paragraph (ii) of this section (C), the term Subsidiary
shall mean only a corporation of which a majority of each class of equity security
is owned, directly or indirectly, by the Corporation.
(vii) Disinterested Director means any member of the Board of Directors of
the Corporation (the Board) who is unaffiliated with an Interested Shareholder and
was a member of the Board prior to the time that the Interested Shareholder became
an Interested Shareholder, and any successor of a Disinterested Director who is
unaffiliated with the Interested Shareholder and is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then on the Board.
A member of the Board of Directors who is affiliated with an Interested Shareholder
shall nevertheless be considered a Disinterested Director for the purpose of voting
upon any matter in which the interests of such Interested Shareholder (or any
Affiliate or Associate of such Interested Shareholder) are solely as a holder of shares of capital stock and are undifferentiated from the interests of other holders
of the same class of shares of capital stock.
(viii) Fair Market Value means: (a) 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 Securities Exchange
Act of 1934 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 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
Disinterested Directors in good faith; and (b) in the case of property other than
cash or stock, the fair market value of such property on the date in question as
determined by a majority of the Disinterested Directors in good faith.
(ix) In the event of any Business Combination in which the Corporation
survives, the phrase consideration other than cash to be received as used in
subparagraph (ii)(a) of section (B) of this Article SEVENTH shall include the shares
of Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(D) A majority of the Disinterested Directors of the Corporation shall have the power and duty
to determine for the purposes of this Article SEVENTH, on the basis of information known to them
after reasonable inquiry, (i) whether a person is an Interested Shareholder or a Disinterested
Director, (ii) the number of shares of each class of capital stock beneficially owned by any
person, (iii) whether a person is an Affiliate or Associate of another, (iv) whether the assets
which are the subject of any Business Combination have, or the
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consideration to be received for the issuance or transfer of securities by or to the
Corporation or any Subsidiary in any Business Combination has, an aggregate Fair Market Value of 5%
or more of the total assets of the Corporation and its subsidiaries as reflected on the immediately
preceding year-end consolidated balance sheet of the Corporation. A majority of the Disinterested
Directors of the Corporation shall have the further power to interpret all of the terms and
provisions of this Article SEVENTH.
(E) Any other provisions of these Articles of Incorporation or the By-Laws of the Corporation
to the contrary notwithstanding (and the fact notwithstanding that a lesser percentage may be
specified by law, these Articles of Incorporation or the By-Laws of the Corporation), the
affirmative vote of the holders of 80% or more of the outstanding Voting Stock, voting together as
a single class, shall be required to amend or repeal, or adopt any provisions inconsistent with,
this Article SEVENTH.
(F) If any section, sub-section, paragraph, subparagraph, clause, word, combination of words
or other portion of this Article SEVENTH shall be illegal, invalid or unenforceable, then the
illegal, invalid or unenforceable portion shall be stricken herefrom only in the circumstances then
under adjudication, and the remaining provisions of this Article SEVENTH shall be considered as if
the portion so struck does not form apart hereof.
EIGHTH: Except as provided in Article SEVENTH (E), whenever any corporate action is to be
taken by vote of the shareholders adopting, amending or repealing these Articles of Incorporation
or the Corporations By-Laws, the proposed corporate action shall be authorized only (1) upon
receiving at least 80% of the votes which all voting shareholders are entitled to cast thereon or
(2) in the event that the corporate action has been proposed by a majority of the Disinterested
Directors, upon receiving at least a majority of the votes which all voting shareholders are
entitled to cast thereon.
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