1
Exhibit 3.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ROCKY SHOES & BOOTS, INC.
(adopted November 5, 1997)
Mike Brooks, President, and Curtis A. Loveland, Secretary, of Rocky
Shoes & Boots, Inc. (the "Corporation"), with its principal offices located at
Nelsonville, Athens County, Ohio, do hereby certify that pursuant to the
authority conferred upon the Board of Directors by the Amended and Restated
Articles of Incorporation of the Corporation, the Board of Directors on November
5, 1997, adopted a resolution creating a series of 125,000 (one hundred-twenty
five thousand) shares of Voting Preferred Stock, no par value, designated as
Series B Junior Participating Cumulative Preferred Stock, and that the Amended
and Restated Articles of Incorporation have been amended and restated as
follows:
FIRST: The name of the Corporation shall be Rocky Shoes & Boots, Inc.
SECOND: The place in Ohio where its principal office is to be located
is Athens County, the City of Nelsonville, Ohio.
THIRD: The purposes for which it is formed are to engage in any
business or activity for which corporations may be formed under Sections 1701.01
to 1701.98, inclusive, of the Revised Code of Ohio.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is Ten Million Five Hundred
Thousand (10,500,000) consisting of:
1. Ten Million (10,000,000) shares of Common Stock, without
par value (the "Common Stock");
2. Two Hundred Fifty Thousand (250,000) shares of Voting
Preferred Stock, without par value (the "Voting Preferred Stock"); and
3. Two Hundred Fifty Thousand (250,000) shares of Non-Voting
Preferred Stock, without par value (the "Non-Voting Preferred Stock").
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A. COMMON STOCK
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The holders of the Common Stock are entitled at all times to one vote
for each share and to such dividends as the Board of Directors may in
its discretion from time to time legally declare, subject, however, to
the voting and dividend rights, if any, of the holders of the Voting
Preferred Stock and the Non-Voting Preferred Stock. In the event of any
liquidation, dissolution or winding up of the Corporation, the
remaining assets of the Corporation after the payment of all debts and
necessary expenses shall be distributed among the holders of the Common
Stock pro rata in accordance with their respective holdings, subject,
however, to the rights of the holders of the Voting Preferred Stock and
the Non-Voting Preferred Stock then outstanding. The Common Stock is
subject to all of the terms and provisions of the Voting Preferred
Stock and the Non-Voting Preferred Stock as fixed by the Board of
Directors as hereinafter provided.
B. VOTING PREFERRED STOCK
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The Board of Directors is hereby expressly authorized to adopt
amendments to the Articles of Incorporation to provide for the issuance
of one or more series of Voting Preferred Stock, to establish from time
to time the number of shares to be included in each such series, to fix
the designation, powers, preferences and rights of the shares of each
such series and any qualifications, limitations or restrictions
thereof, including without limitation the following, and the shares of
each series may vary from the shares of any other series in the
following respects:
(a) the division of such shares into series and the
designation and authorized number of shares of each
series;
(b) the annual dividend rate on the shares;
(c) the dates of payment of dividends, whether the dividends
shall be cumulative and, if cumulative, the date from
which dividends shall accumulate;
(d) the redemption price or prices for the particular series,
if redeemable, and the terms and conditions of such
redemption;
(e) sinking fund requirements, if any;
(f) the preference, if any, of the shares of such series in
the event of any voluntary or involuntary liquidation,
dissolution, or winding up of affairs of the Corporation;
(g) the right, if any, of the shares of such series to be
converted into shares of any other series or class and the
terms and conditions of such conversion; and
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(h) any other relative rights, preferences, and
limitations of that series.
The holders of Voting Preferred Stock shall be entitled at all times to
one vote for each share, voting as a class.
C. NON-VOTING PREFERRED STOCK
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The Board of Directors is hereby expressly authorized to adopt
amendments to the Articles of Incorporation to provide for the issuance
of one or more series of Non-Voting Preferred Stock, and to establish
from time to time the number of shares to be included in each such
series, to fix the designation, powers, preferences and rights of the
shares of each such series and any qualifications, limitations or
restrictions thereof, including without limitation the following, and
the shares of each series may vary from the shares of any other series
in the following respects:
(a) the division of such shares into series and the
designation and authorized number of shares of each
series;
(b) the annual dividend rate on the shares;
(c) the dates of payment of dividends, whether the dividends
shall be cumulative and, if cumulative, the date from
which dividends shall accumulate;
(d) the redemption price or prices for the particular series,
if redeemable, and the terms and conditions of such
redemption;
(e) sinking fund requirements, if any;
(f) the preference, if any, of the shares of such series in
the event of any voluntary or involuntary liquidation,
dissolution, or winding up of affairs of the Corporation;
(g) the right, if any, of the shares of such series to be
converted into shares of any other series or class and the
terms and conditions of such conversion; and
(h) any other relative rights, preferences, and limitations of
that series.
Except as otherwise required by law, no holders of Non-Voting Preferred
Stock shall be entitled to vote on any matter submitted to the
shareholders of the Corporation.
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D. SERIES A CONVERTIBLE NON-VOTING PREFERRED STOCK
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There shall be created out of the authorized number of shares of
Non-Voting Preferred Stock of the Corporation a series of Non-Voting
Preferred Stock designated as Series A Non-Voting Convertible Preferred
Stock (the "Series A Stock"), to consist of 125,000 shares, with a
stated value of $.06 per share, of which the preferences and relative
and other rights, and the qualifications, limitations or restrictions
thereof, shall be (in addition to those set forth elsewhere in this
Article FOURTH) as follows:
1. CERTAIN DEFINITIONS. Unless the context otherwise requires,
the terms defined in this paragraph shall have, for the purposes of
this paragraph and paragraphs 2 through 10 below, the meanings herein
specified.
COMMON STOCK. The term "Common Stock" shall mean all shares now
or hereafter authorized of any class of Common Stock of the
Corporation and any other shares of the Corporation, howsoever
designated, authorized after the Issue Date, which have the
right (subject always to prior rights of any class or series of
Voting and Non-Voting Preferred Stock) to participate in the
distribution of the assets and earnings of the Corporation
without limit as to per share amount.
ISSUE DATE. The term "Issue Date" shall mean the date that
shares of Series A Stock are first issued by the Corporation.
JUNIOR STOCK. The term "Junior Stock" shall mean the Common
Stock and any class or series of shares of the Corporation
issued after the Issue Date not entitled to receive any assets
upon the liquidation, dissolution or winding up of the affairs
of the Corporation until the shares of Series A Stock shall have
received the Stated Value of all outstanding shares of Series A
Stock as of the date of such liquidation, dissolution or winding
up, plus any accrued and unpaid dividends to such date.
PARITY STOCK. The term "Parity Stock" shall mean, for purposes
of paragraph 3 below, any class or series of shares of the
Corporation issued after the Issue Date entitled to receive
assets upon the liquidation, dissolution or winding up of the
affairs of the Corporation on a parity with the Series A Stock.
SENIOR STOCK. The term "Senior Stock" shall mean any class or
series of shares of the Corporation issued after the Issue Date
ranking senior to the Series A Stock in respect of the right to
receive dividends, as discussed in paragraph 2 below, or assets
upon the liquidation, dissolution or winding up of the affairs
of the Corporation, as discussed in paragraph 3 below.
STATED VALUE. The term "Stated Value" when used in reference to
the Series A Stock shall mean $.06 per share of Series A Stock.
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2. DIVIDEND RATE; PAYMENT. The dividend rate and dates of
payment for Series A Stock shall be identical to the Common Stock.
3. DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP. In
the event of any voluntary or involuntary liquidation, subject to the
prior preferences and other rights of any shares of Senior Stock, but
before any distribution or payment shall be made to the holders of
Junior Stock, the holders of the shares of Series A Stock shall be
entitled to be paid the Stated Value of all outstanding shares of
Series A Stock as of the date of such liquidation or dissolution or
such other winding up, plus any accrued and unpaid dividends thereon to
such date, in cash or in property taken at its fair value as determined
by the Board of Directors, or both, at the election of the Board of
Directors. If such payment shall have been made in full to the holders
of the Series A Stock, and if payment shall have been made in full to
the holders of any Senior Stock and Parity Stock of all amounts to
which such holders shall have a preference, then the remaining assets
and funds of the Corporation shall be distributed pro rata, on a
share-for-share basis, among the holders of shares of Series A Stock,
Parity Stock and Junior Stock. If, upon any such liquidation,
dissolution or other winding up of the affairs of the Corporation, the
net assets of the Corporation distributable among the holders of all
outstanding shares of Series A Stock and of any shares of Parity Stock
shall be insufficient to permit the payment in full to such holders of
the preferential amounts to which they are entitled, then the entire
net assets of the Corporation remaining after the distributions to
holders of any shares of Senior Stock of the full amounts to which they
may be entitled shall be distributed among the holders of the shares of
Series A Stock and of any Parity Stock ratably in proportion to the
full amounts to which they would otherwise be respectively entitled.
Neither the consolidation nor merger of the Corporation into or with
another corporation or corporations, nor the sale of all or
substantially all of the assets of the Corporation to another
corporation shall be deemed a liquidation, dissolution or winding up of
the affairs of the Corporation within the meaning of this paragraph 3.
4. VOTING RIGHTS. Except as otherwise required by law, no holder
of the Series A Stock shall be entitled to vote on any manner submitted
to the shareholders of the Corporation.
5. CONVERSION. Each share of Series A Stock may, at the option
of the holder, be converted into one share of Common Stock of the
Corporation at any time after the second anniversary of the Issue Date.
All remaining issued and outstanding shares of Series A Stock shall,
without further action by the holders thereof, convert into an equal
number of shares of Common Stock on the fifth anniversary of the Issue
Date.
6. ADJUSTMENTS FOR STOCK SPLITS OR COMBINATIONS. If the
Corporation shall at any time or from time to time after the Issue Date
of the shares of Series A Stock, effect a stock split or stock dividend
or other subdivision of the Common Stock, the Series A Stock shall be
proportionately subdivided. Conversely, if the Corporation shall at any
time or from time to time after the Issue Date of the Series A Stock,
effect a combination of the Common
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Stock, the Series A Stock shall be proportionately combined. In
addition to the foregoing adjustment to the number of Series A Stock,
the Stated Value shall be proportionately adjusted with any subdivision
or combination of the Series A Stock. Any adjustment under this
paragraph 6 shall become effective as of the close of business on the
date the subdivision or combination becomes effective.
7. OTHER TERMS. Except as may otherwise be provided in this
Article FOURTH or as required by law, the terms of the Series A Stock
shall be identical to those of the Common Stock.
8. HEADINGS OF SUBDIVISIONS. The headings of the paragraphs 1
through 10 hereof are for convenience of reference only and shall not
affect the interpretation of the provisions hereof.
9. SEVERABILITY OF PROVISIONS. If any right, preference or
limitation of the Series A Stock set forth in paragraphs 1 through 10
hereof (as may be amended from time to time) is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public
policy, all other rights, preferences and limitations set forth in
paragraphs 1 through 10 hereof (as so amended) which can be given
effect without the invalid, unlawful and unenforceable right,
preference or limitation shall, nevertheless, remain in full force and
effect, and no right, preference or limitation herein set forth shall
be deemed dependent upon any other such right, preference or limitation
unless so expressed herein.
10. STATUS OF REACQUIRED SHARES. Upon conversion or redemption
of all issued and outstanding shares of Series A Stock, shares reserved
for the Series A Stock shall (upon compliance with any applicable
provisions of the laws of the State of Ohio) have the status of
authorized and unissued Non-Voting Preferred Stock issuable in series
undesignated as to series and may be redesignated and reissued.
E. SERIES B JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK.
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There shall be created out of the authorized number of shares of Voting
Preferred Stock of the Corporation a series of Voting Preferred Stock
designated as Series B Junior Participating Cumulative Preferred Stock
(the "Series B Preferred Stock"), to consist of 125,000 shares, without
par value, of which the preferences and relative and other rights, and
the qualifications, limitations or restrictions thereof, shall be (in
addition to those set forth elsewhere in this Article FOURTH) as
follows:
1. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series B Preferred Stock, in
preference to the holders of shares of Common Stock,
without par value, of the Corporation (the "Common Stock")
and of any other junior stock of the Corporation that may
be
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outstanding, 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 January, April, July and October
in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first
issuance of a share 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 (i) $0.25 per share
($1.00 per annum), or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock, or a
subdivision of the outstanding 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 that the Corporation shall at any time
declare or pay any dividend on 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) into a
greater or lesser number of shares of Common Stock, then
and in each such event, the amount to which the holder of
each share of Series B Preferred Stock was entitled
immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after
such event, and the denominator of which is the number of
shares of Common Stock that were outstanding immediately
prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided
in paragraph (a) of this Section 1 immediately after it
declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock);
provided, however, 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 $0.25 per share ($1.00 per annum) on
the Series B 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 B Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series B Preferred Stock, unless
the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date
of issue is a
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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 cases such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall cumulate
but 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.
2. VOTING RIGHTS. The holders of shares of Series B Preferred
Stock shall have the following voting rights:
(a) Each share of Series B Preferred Stock shall entitle
the holder thereof to 100 votes (and each one
one-hundredth of a share of Series B Preferred Stock shall
entitle the holder thereof to one vote) on all matters
submitted to a vote of the shareholders of the
Corporation. In the event that the Corporation shall at
any time declare or pay any dividend on 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
and in each such event, 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.
(b) Except as otherwise provided in the Second Amended and
Restated Articles of Incorporation of the Corporation or
by law, the holders of shares of Series B Preferred Stock
and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote
of shareholders of the Corporation.
(c) In addition, the holders of shares of Series B
Preferred Stock shall have the following special voting
rights:
(i) In the event that at any time dividends on
Series B Preferred Stock, whenever accrued and
whether or not consecutive, shall not have been
paid
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or declared and a sum sufficient for the payment
thereof set aside, in an amount equivalent to six
quarterly dividends on all shares of Series B
Preferred Stock at the time outstanding, then and
in each such event, the holders of shares of Series
B Preferred Stock and each other series of
preferred stock now or hereafter issued that shall
be accorded such class voting right by the Board of
Directors and that shall have the right to elect
one director (or, in the event any such other
series is entitled to a greater number of
directors, such number of directors, which shall be
cumulative with and not in addition to the director
provided for herein, such director or directors
being hereinafter referred to as "Special
Directors") as the result of a prior or subsequent
default in payment of dividends on such series
(each such other series being hereinafter called
"Other Series of Preferred Stock"), voting
separately as a class without regard to series,
shall be entitled to elect the Special Director at
the next annual meeting of shareholders of the
Corporation, in addition to the directors to be
elected by the holders of all shares of the
Corporation entitled to vote for the election of
directors, and the holders of all shares (including
the Series B Preferred Stock) otherwise entitled to
vote for directors, voting separately as a class,
shall be entitled to elect the remaining members of
the Board of Directors, provided that the Series B
Preferred Stock and each Other Series of Preferred
Stock, voting as a class, shall not have the right
to elect more than one Special Director (in
addition to any Special Director to which the
holders of any Other Series of Preferred Stock are
then entitled). Such special voting right of the
holders of shares of Series B Preferred Stock may
be exercised until all dividends in default on the
Series B Preferred Stock shall have been paid in
full or declared and funds sufficient therefor set
aside, and when so paid or provided for, such
special voting right of the holders of shares of
Series B Preferred Stock shall cease, but subject
always to the same provisions for the vesting of
such special voting rights in the event of any such
future dividend default or defaults.
(ii) At any time after such special voting rights
shall have so vested in the holders of shares of
Series B Preferred Stock, the Chairman of the
Board, President, or Chief Executive Officer of the
Corporation may, and upon the written request of
the holders of record of 10% or more in number of
the shares of Series B Preferred Stock and each
Other Series of Preferred Stock then outstanding
addressed to the President at the principal
executive office of the Corporation shall, call a
special meeting of the holders of shares of
Preferred Stock so entitled to vote, for the
election of the Special Directors to be elected by
them as herein provided, to be held within 60 days
after such call and at the place and upon the
notice provided by law and in the Code of
Regulations for the holding of meetings of
shareholders; provided, however, that the Chairman
of the Board, President, or Chief Executive
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Officer shall not be required to call such special
meeting in the case of any such request received
less than 90 days before the date fixed for any
annual meeting of shareholders, and if in such case
such special meeting is not called or held, the
holders of shares of Preferred Stock so entitled to
vote shall be entitled to exercise the special
voting rights provided in this paragraph at such
annual meeting. If any such special meeting
required to be called as above provided shall not
be called by the Chairman of the Board, President,
or Chief Executive Officer within 30 days after
receipt of any such request, then the holders of
record of 10% or more in number of the shares of
Series B Preferred Stock and each Other Series of
Preferred Stock then outstanding may designate in
writing one of their number to call such meeting,
and the person so designated may, at the expense of
the Corporation, call such meeting to be held at
the place and upon the notice given by such person,
and for that sole purpose shall have access to the
stock books of the Corporation. No such special
meeting and no adjournment thereof shall be held on
a date later than 60 days before the annual meeting
of shareholders. If, at any meeting so called or at
any annual meeting held while the holders of shares
of Series B Preferred Stock have the special voting
rights provided for in this paragraph, the holders
of not less than 10% of the aggregate voting power
of Series B Preferred Stock and each Other Series
of Preferred Stock then outstanding are present in
person or by proxy, which percentage shall be
sufficient to constitute a quorum for the election
of additional directors as herein provided, the
then authorized number of directors of the
Corporation shall be increased by the number of
Special Directors to be elected, as of the time of
such special meeting or the time of the first such
annual meeting held while such holders have special
voting rights and such quorum is present, and the
holders of shares of Series B Preferred Stock and
each Other Series of Preferred Stock, voting as a
class, shall be entitled to elect the Special
Director or Directors so provided for. If the
directors of the Corporation are then divided into
classes under provisions of the Second Amended and
Restated Articles of Incorporation of the
Corporation or the Code of Regulations, the Special
Director or Directors shall belong to each class of
directors in which a vacancy is created as a result
of such increase in the authorized number of
directors. If the foregoing expansion of the size
of the Board of Directors shall not be valid under
applicable law, then the holders of shares of
Series B Preferred Stock and of each Other Series
of Preferred Stock, voting as a class, shall be
entitled, at the meeting of shareholders at which
they would otherwise have voted, to elect a Special
Director or Directors to fill any then existing
vacancies on the Board of Directors, and shall
additionally be entitled, at such meeting and each
subsequent meeting of shareholders at which
directors are elected, to elect all of the
directors then
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being elected until by such class vote the
appropriate number of Special Directors has been so
elected.
(iii) Upon the election at such meeting by the
holders of shares of Series B Preferred Stock and
each Other Series of Preferred Stock, voting as a
class, of the Special Director or Directors they
are entitled so to elect, the persons so elected,
together with such persons as may be directors or
as may have been elected as directors by the
holders of all shares (including Series B Preferred
Stock) otherwise entitled to vote for directors,
shall constitute the duly elected directors of the
Corporation. Each Special Director so elected by
holders of shares of Series B Preferred Stock and
each Other Series of Preferred Stock, voting as a
class, shall serve until the next annual meeting or
until their respective successors shall be elected
and qualified, or if any such Special Director is a
member of a class of directors under provisions
dividing the directors into classes, each such
Special Director shall serve until the annual
meeting at which the term of office of such Special
Director's class shall expire or until such Special
Director's successor shall be elected and shall
qualify, and at each subsequent meeting of
shareholders at which the directorship of any
Special Director is up for election, said special
class voting rights shall apply in the reelection
of such Special Director or in the election of such
Special Director's successor; provided, however,
that whenever the holders of shares of Series B
Preferred Stock and each Other Series of Preferred
Stock shall be divested of the special rights to
elect one or more Special Directors as above
provided, the terms of office of all persons
elected as Special Directors, or elected to fill
any vacancies resulting from the death,
resignation, or removal of Special Directors shall
forthwith terminate (and the number of directors
shall be reduced accordingly).
(iv) If, at any time after a special meeting of
shareholders or an annual meeting of shareholders
at which the holders of shares of Series B
Preferred Stock and each Other Series of Preferred
Stock, voting as a class, have elected one or more
Special Directors as provided above, and while the
holders of shares of Series B Preferred Stock and
each Other Series of Preferred Stock shall be
entitled so to elect one or more Special Directors,
the number of Special Directors who have been so
elected (or who by reason of one or more
resignations, deaths or removals have succeeded any
Special Directors so elected) shall by reason of
resignation, death or removal be reduced the
vacancy in the Special Directors may be filled by
any one or more remaining Special Director or
Special Directors. In the event that such election
shall not occur within 30 days after such vacancy
arises, or in the event that there shall not be
incumbent at least one Special Director, the
Chairman of the Board, President, or Chief
Executive Officer
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of the Corporation may, and upon the written
request of the holders of record of 10% or more in
number of the shares of Series B Preferred Stock
and each Other Series of Preferred Stock then
outstanding addressed to the Secretary at the
principal office of the Corporation shall, call a
special meeting of the holders of shares of Series
B Preferred Stock and each Other Series of
Preferred Stock so entitled to vote, for an
election to fill such vacancy or vacancies, to be
held within 60 days after such call and at the
place and upon the notice provided by law and in
the Code of Regulations for the holding of meetings
of shareholders; provided, however, that the
Chairman of the Board, President, or Chief
Executive Officer shall not be required to call
such special meeting in the case of any such
request received less than 90 days before the date
fixed for any annual meeting of shareholders, and
if in such case such special meeting is not called,
the holders of shares of Preferred Stock so
entitled to vote shall be entitled to fill such
vacancy or vacancies at such annual meeting. If any
such special meeting required to be called as above
provided shall not be called by the Chairman of the
Board, President, or Chief Executive Officer within
30 days after receipt of any such request, then the
holders of record of 10% or more in number of the
shares of Series B Preferred Stock and each Other
Series of Preferred Stock then outstanding may
designate in writing one of their number to call
such meeting, and the person so designated may, at
the expense of the Corporation, call such meeting
to be held at the place and upon the notice above
provided, and for that purpose shall have access to
the stock books of the Corporation; no such special
meeting and no adjournment thereof shall be held on
a date later than 60 days before the annual meeting
of shareholders.
(d) Nothing herein shall prevent the directors or
shareholders from taking any action to increase the number
of authorized shares of Series B Preferred Stock, or
increasing the number of authorized shares of Preferred
Stock of the same class as the Series B Preferred Stock or
the number of authorized shares of Common Stock, or
changing the par value of the Common Stock or Preferred
Stock, or issuing options, warrants or rights to any class
of stock of the Corporation as authorized by the Second
Amended and Restated Articles of Incorporation of the
Corporation, as they may hereafter be amended.
(e) Except as set forth herein, holders of shares 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 as set forth in the
Second Amended and Restated Articles of Incorporation of
the Corporation or by law) for taking any corporate
action.
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3. CERTAIN RESTRICTIONS.
(a) Whenever any dividends or other distributions payable
on the Series B Preferred Stock as provided in paragraph 1
hereof 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, directly or indirectly:
(i) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series B Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions with respect to, 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 shares of 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;
(iii) 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) with 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
(iv) 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.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration, directly or indirectly, any shares of stock
of the Corporation unless the Corporation could, under
paragraph (a) of this paragraph 3, purchase or otherwise
acquire such shares at such time and in such manner.
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4. REACQUIRED SHARES. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled 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 any series of
preferred stock created by resolution or resolutions of the Board of
Directors (including Series B Preferred Stock), subject to the
conditions and restrictions on issuance set forth herein.
5. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be
made to:
(a) 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 (i) $1.00 per share
($0.001 per one one-hundredth of a share), plus an amount
equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such
payment, or (ii) 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 shares of Common Stock; or
(b) 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 other 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 that the Corporation shall at any time
declare or pay any dividend on 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) into a
greater or lesser number of shares of Common Stock, then
and in each such event, the aggregate amount to which the
holder of each share of Series B Preferred Stock was
entitled immediately prior to such event under the proviso
in clause (a) 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.
6. CONSOLIDATION, MERGER, ETC. In the event that 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,
or otherwise changed, then and in each such event, the shares of Series
B Preferred
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15
Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter
set forth) equal to 100 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 that the Corporation shall at any
time declare or pay any dividend on 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) into a greater or lesser number of shares of Common Stock,
then and in each such event, 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.
7. NO REDEMPTION. The shares of Series B Preferred Stock shall
not be redeemable. Notwithstanding the foregoing, the Corporation may
acquire shares of Series B Preferred Stock in any other manner
permitted by law or the Second Amended and Restated Articles of
Incorporation of the Corporation.
8. RANK. Unless otherwise provided in the Second Amended and
Restated Articles of Incorporation of the Corporation or an amendment
of the Articles of Incorporation relating to a subsequent series of
preferred stock of the Corporation, the Series B Preferred Stock shall
rank junior to all other series of the Corporation's preferred stock as
to the payment of dividends and the distribution of assets on
liquidation, dissolution or winding up, and senior to the Common Stock
of the Corporation.
9. AMENDMENT. The Second Amended and Restated Articles of
Incorporation of the Corporation shall not be amended in any manner
that would materially and adversely alter or change the powers,
preferences or special rights of the Series B Preferred Stock 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 series.
10. FRACTIONAL SHARES. Series B Preferred Stock may be issued in
fractions of a share (in one one-hundredths (1/100) of a share and
integral multiples thereof) that shall entitle the holder thereof, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the
benefit of all other rights of holders of shares of Series B Preferred
Stock.
FIFTH: The Corporation, through its Board of Directors, shall have the
right and power to repurchase any of its outstanding shares at such times, for
such consideration and upon such terms and conditions as may be agreed upon
between the Corporation and the selling shareholder or shareholders.
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16
SIXTH: No holders of shares of the Corporation shall have any
preemptive right to subscribe for or to purchase any shares of the Corporation
of any class, whether now or hereafter authorized.
SEVENTH: The provisions of Section 1701.831 of the Revised Code of
Ohio, as may be amended from time to time, relating to control share
acquisitions shall not be applicable to this Corporation.
EIGHTH: The affirmative vote of the holders of the shares entitling
them to exercise two-thirds of the voting power of the corporation shall be
required for the approval or authorization of any (i) merger or consolidation of
the Corporation with or into any other corporation or (ii) sale, lease, exchange
or other disposition of all or substantially all of the assets of the
Corporation to or with any other corporation, person or other entity; provided,
however, that such two-thirds voting requirement shall not be applicable if the
Board of Directors of the Corporation shall have approved such a transaction
described in clause (i) or (ii) by resolution adopted by two-thirds of the
members of the Board of Directors.
NINTH: It is hereby declared to be a proper corporate purpose,
reasonably calculated to benefit shareholders, for the Board of Directors to
base the response of the Corporation to any "Acquisition Proposal" on the Board
of Directors' evaluation of what is in the best interest of the Corporation and
for the Board of Directors, in evaluating what is in the best interest of the
Corporation, to consider:
(i) The best interest of the shareholders; for this purpose the
Board shall consider, among other factors, not only the
consideration being offered in the Acquisition Proposal, in
relation to the then current market price, but also in
relation to the then current value of the Corporation in a
freely negotiated transaction and in relation to the Board of
Directors' then estimate of the future value of the
Corporation as an independent entity, the business and
financial conditions and earnings prospects of the acquiring
person or persons, and the competence, experience and
integrity of the acquiring person or persons and its or their
management; and
(ii) such other factors as the Board of Directors determines to be
relevant, including, among other factors, the social, legal
and economic effects of the Acquisition Proposal upon
employees, suppliers, customers and business.
"Acquisition Proposal" means any proposal of any person (a)
for a tender offer or exchange offer for any equity security
of the Corporation, (b) to merge or consolidate the
Corporation with another corporation, or (c) to purchase or
otherwise acquire all or substantially all of the properties
and assets of the Corporation.
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TENTH: Indemnification and Insurance.
The Corporation may indemnify any director, officer, incorporator or
any former director or officer of the Corporation and any person who is or has
served at the request of the Corporation as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise (and
his heirs, executors and administrators) against expenses, including attorneys
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer,
incorporator or trustee in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, to the full extent and according to the procedures and
requirements set forth in the Ohio General Corporation Law as the same may be in
effect from time to time. The indemnification provided for herein shall not be
deemed to restrict the right of the Corporation to (i) indemnify employees,
agents and others as permitted by such Law, (ii) purchase and maintain insurance
or provide similar protection on behalf of the directors, officers or such other
persons against liabilities asserted against them or expenses incurred by them
arising out of their service to the Corporation as contemplated herein, and
(iii) enter into agreements with such directors, officers, incorporators,
employees, agents or others indemnifying them against any and all liabilities
(or such lesser indemnification as may be provided in such agreements) asserted
against them or incurred by them arising out of their service to the Corporation
as contemplated herein.
ELEVENTH: Notwithstanding any provision of Chapter 1701 of the Ohio
Revised Code, now or hereafter in effect, no shareholder shall have the right to
vote cumulatively in the election of directors.
TWELFTH: The provisions of Chapter 1704 of the Ohio Revised Code, now
or hereafter in effect, shall be applicable to this corporation.
THIRTEENTH: These Amended and Restated Articles may be amended by the
affirmative vote of the holders of shares entitling them to exercise a majority
of the voting power of the Corporation on the proposal; provided, however, that
the provisions set forth in Articles Seventh, Eighth, Ninth, Eleventh, Twelfth
and Thirteenth, herein, may not be repealed or amended in any respect unless
such action is approved by the affirmative vote of the holders of shares
entitling them to exercise two-thirds of the voting power of the Corporation on
the proposal.
FOURTEENTH: These Second Amended and Restated Articles of Incorporation
take the place of and supersede the existing Amended and Restated Articles of
Incorporation as heretofore amended.
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IN WITNESS WHEREOF, Mike Brooks, President, and Curtis A. Loveland,
Secretary, of Rocky Shoes & Boots, Inc., acting for and on behalf of the
Corporation, have hereunto subscribed their names this 5th day of November,
1997.
ROCKY SHOES & BOOTS, INC.
By: /s/ Mike Brooks
-----------------------------------
Mike Brooks, President
By: /s/ Curtis A. Loveland
-----------------------------------
Curtis A. Loveland, Secretary
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