Shareholders' Agreement - American Greetings Corp.
SHAREHOLDERS' AGREEMENT
This SHAREHOLDERS' AGREEMENT (this "Agreement") dated as of
November 19, 1984 among the individuals, fiduciaries and charitable
organizations which have become signatories hereto as permitted herein (as
"Participating Shareholders" described in Section 1.3 hereof) and
American Greetings Corporation, an Ohio corporation (the "Corporation").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Participating Shareholders own of record or beneficially
(including as beneficial owners of certain voting trust certificates) Class B
Common Shares, par value $1 per share ("Class B Common Shares"), of the
Corporation; and
WHEREAS, the Participating Shareholders desire to ensure the continued
independence of the Corporation by subjecting the Class B Common Shares now
owned or hereafter acquired by them to certain mutually agreeable limitations;
and
WHEREAS, the Board of Directors of the Corporation has approved certain
transactions as a result of which the terms of the Class B Common Shares are
proposed to be modified to impose certain restrictions on the transfer of such
Shares;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration had and received, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, hereby
agree as follows:
<PAGE> 2
2
1. Definitions.
------------
1.1 The term "Family Member" shall mean Jacob Sapirstein, founder of
the Corporation, his lineal descendants by blood or by legal adoption prior to
age 18, spouses of such descendants, the lineal descendants of any such spouses,
the spouses of any such spouses' lineal descendants and trusts (including voting
trusts) exclusively for the benefit of any such persons. In applying the term
"exclusively" for purposes of this Agreement, the interest of any Charity that
is a Participating Shareholder (or does not fail to become a Participating
Shareholder at the time provided in Section 1.3 hereof) or any contingent trust
interest having at the time of transfer an actuarial value (under valuation
tables then used for federal gift tax purposes for gifts between private
individuals) of not more than 5 percent of the value of the assets of the trust
or an unexercised power of appointment shall be ignored.
1.2 The term "Charity" shall mean an organization contributions to
which are deductible for federal income, estate or gift tax purposes.
1.3 The term "Participating Shareholder" shall mean any Family Member
or Charity which has signed or hereafter signs a counterpart of this Agreement,
delivered a copy thereof to all other Participating Shareholders (or to the
Depository (as defined in Section 7.1 hereof)) and is bound
<PAGE> 3
3
by the terms hereof. No Participating Shareholder shall be deemed to forfeit
such status upon divorce, remarriage or adoption. In the case of a trust (other
than a voting trust, which is governed by Section 6 hereof) exclusively for the
benefit of a Family Member or Members, the Trustee and all adult beneficiaries
having a current trust interest (as well as all ascertainable Charitable
beneficiaries having a current trust interest) shall sign this Agreement as
Participating Shareholders if the trust is to be considered a Participating
Shareholder. During his lifetime, the donor of a trust that is revocable by the
donor alone shall be considered the only beneficiary thereof so long as such
trust is so revocable. At such time, if any, as the trust shall have an adult
beneficiary having a current trust interest or an ascertainable Charitable
beneficiary having a current trust interest who or which shall fail or be unable
to sign this Agreement for a period of 30 days following notification to such
beneficiary of the terms of this Agreement by any Participating Shareholders or
by the Depository, the trust shall thereupon cease to be a Participating
Shareholder and Section 3 of this Agreement shall then apply as if the Class B
Common Shares held by the trust were then to be transferred. In the case of a
minor or incompetent beneficiary, the Trustee (or a Custodian under the
applicable Uniform Gifts to Minors Act or the practical equivalent thereof in
the case of Class B Common
<PAGE> 4
4
Shares held under such Act or equivalent) and a parent (in the case of a minor)
or legal guardian (in the case of a minor or an incompetent) of the beneficiary
shall sign on his behalf if the trust (or custodial arrangement) is to be
considered a Participating Shareholder. In the case of a minor or incompetent
beneficiary, the Trustee or custodian shall in any event be obligated to secure
the beneficiary's legally binding signature (or that of his legal guardian) to
this Agreement prior to an actual distribution of Class B Common Shares, and if
such signature is not so secured such beneficiary shall not be considered a
Participating Shareholder and such distribution shall be subject to Section 3 of
this Agreement.
2. Permitted Transfers.
--------------------
2.1 Any Participating Shareholder may at any time sell, give or
otherwise transfer Class B Common Shares or any interest therein to any Family
Member who is a Participating Shareholder. Any Participating Shareholder may at
any time give Class B Common Shares or any interest therein to a Charity that is
a Participating Shareholder. Any Class B Common Shares so transferred shall
remain subject to this Agreement in the hands of the transferee.
2.2 Any Participating Shareholder may pledge Class B Common Shares as
security for a loan if the pledgee (being competent to do so) agrees in writing
to be bound by this Agreement and to receive such Class B Common Shares subject
<PAGE> 5
5
to this Agreement and, in the event of default on such loan and levy upon the
collateral, to offer such Class B Common Shares to the Participating
Shareholders other than the pledgor in accordance with the procedures specified
in Section 4 hereof, and to convert into Class A Common Shares, par value $1 per
share ("Class A Common Shares"), of the Corporation in accordance with the
Articles of Incorporation of the Corporation any Class B Common Shares not
accepted by such Participating Shareholders.
3. Transfers for Which First Refusal Procedure is
----------------------------------------------
Required.
---------
3.1 Any Participating Shareholder who desires to sell, give or
otherwise transfer Class B Common Shares (or the Class A Common Shares into
which they are convertible) or any interest therein otherwise than as provided
in Section 2 hereof shall first offer to sell or exchange such Class B Common
Shares to or with the other Participating Shareholders and the Corporation. Such
offer shall be made, and may be accepted, in accordance with the procedures
specified in Section 4 hereof. During a period of 30 days following the last to
expire of the rights of the other Participating Shareholders and the
Corporation, the Participating Shareholder desiring to transfer such Shares or
any interest therein shall have the right, in accordance with the Articles of
Incorporation of the Corporation, to convert any Class B Common Shares not
acquired by any other Participating Shareholder or the
<PAGE> 6
6
Corporation into Class A Common Shares and may transfer such Class A Common
Shares or any interest therein free of the limitations provided for herein, but
only to the person to whom such transfer was originally proposed to be made and
only on terms (except for price in the case of a gift) no more favorable to such
person than those upon which the Class B Common Shares were offered to the other
Participating Shareholders. The Participating Shareholder desiring to transfer
shares may not transfer the Class B Common Shares not acquired by any other
Participating Shareholder without first converting them into Class A Common
Shares, and if such conversion is not accomplished within such 30-day period,
such Class B Common Shares shall continue to be subject to the provisions of
this Agreement.
3.2 Any Participating Shareholder who desires to convert Class B Common
Shares to Class A Common Shares (except as required by Section 3.1 or 3.3
hereof) in accordance with the Articles of Incorporation of the Corporation
shall first offer to transfer such Class B Common Shares to the other
Participating Shareholders and the Corporation in accordance with the procedures
specified in Section 4 hereof. During a period of 30 days following the last to
expire of the rights of the other Participating Shareholders and the
Corporation, the Participating Shareholder desiring to convert Class B Common
Shares may do so, but only to the extent such Class B Common Shares
<PAGE> 7
7
were not accepted by any other Participating Shareholder or the Corporation, and
the Class A Common Shares into which such Class B Common Shares are converted
shall be free from the limitations provided for herein.
3.3 Upon the death of a Participating Shareholder, any Class B
Common Shares then owned by such Participating Shareholder may be transferred in
accordance with Section 2.1 hereof to any other Participating Shareholder by the
personal representative of the estate of such deceased Participating Shareholder
(or by the trustee of any trust or by any other person (e.g., the trustee of a
profit sharing trust) by reason of the death of such deceased Participating
Shareholder). To the extent that any such personal representative, trustee or
other person is required or desires to transfer any Class B Common Shares (or
the Class A Common Shares into which they are convertible) owned by a deceased
Participating Shareholder, or any interest therein, otherwise than as permitted
by Section 2.1 hereof, such personal representative, trustee or other person
shall offer such Class B Common Shares to the other Participating Shareholders
and the Corporation in accordance with the procedures specified in Section 4
hereof. In the case of any Class B Common Shares that are so offered to the
other Participating Shareholders and the Corporation, upon completion of the
procedures specified in Section 4 hereof, those Class B Common Shares not
accepted
<PAGE> 8
8
by any other Participating Shareholder or the Corporation shall, in accordance
with the Articles of Incorporation of the Corporation, be converted into Class A
Common Shares, and thereafter such Class A Common Shares may be transferred to
the designated recipient thereof, free of the limitations provided for herein.
Each of the Participating Shareholders who is a natural person shall take all
steps appropriate to ensure that testamentary documents providing for
implementation upon such Participating Shareholder's death of the foregoing
procedures are in effect at all times after the date hereof.
4. First Refusal Procedures.
-------------------------
4.1 A Participating Shareholder, the personal representative of the
estate of a deceased Participating Shareholder, the trustee of any trust
agreement of which a deceased Participating Shareholder is donor (or any other
person in possession of Class B Common Shares which are to pass by reason of the
death of a Participating Shareholder), or a pledgee who is required by Section
2.2 or Section 3 hereof to offer Class B Common Shares to other Participating
Shareholders and the Corporation (an "Offeror") shall deliver to each of the
other participating Shareholders, the Corporation and the Depository a written
notice, dated the date on which it is sent, containing the following
information:
<PAGE> 9
9
(a) the number of Class B Common Shares proposed
to be transferred (after conversion) or converted (the "Offered Shares");
(b) whether the Offeror proposes to transfer under Section
3.1 hereof or convert under Section 3.2 hereof the Offered Shares;
(c) if the Offeror proposes to transfer the Offered Shares
under Section 3.1 hereof, the name and address of each proposed
transferee and the price per share, if any, payable to the Offeror upon
such transfer;
(d) the date on which the Offeror desires to carry out the
proposed transfer or conversion of the Offered Shares, which shall be
consistent with the procedures provided for in this Agreement
(generally such date should be not less than 20 nor more than 50
business days after the date of such notice).
If the Offeror proposes to make a transfer under Section 3.1 hereof, such
notice shall be accompanied by written evidence that any price per share payable
to the Offeror as specified in such notice is being offered for the Offered
Shares in good faith by the proposed transferee.
4.2 The other Participating Shareholders shall thereupon have the
right and option to acquire the Offered Shares, or any of them, for the
consideration specified in Section 4.3 hereof. Such Participating Shareholders
may
<PAGE> 10
10
exercise such right, at any time before the expiration of 7 business days after
such written notice and accompanying evidence (if applicable) have been given to
the last of such Participating Shareholders and the Corporation, in proportion
to the respective holdings of Class B Common Shares of each such Participating
Shareholder compared to the aggregate holdings of all such Participating
Shareholders; and if any such Participating Shareholder entitled thereto fails
to exercise such Participating Shareholder's right to acquire the Offered Shares
to its full extent, then such right may be exercised (to the extent that it has
not been exercised by such Participating Shareholder) within a further period of
5 business days by the other such Participating Shareholders, in whatever
proportion they may agree upon and, if they cannot agree, in proportion to the
respective holdings of each compared to the aggregate holdings of all of them;
and if the Participating Shareholders fail to exercise their rights to acquire
the Offered Shares to their full extent, then such rights may be exercised (to
the extent of any Offered Shares remaining) within a further period of 3
business days by the Corporation. The right to acquire Offered Shares may be
exercised by a Participating Shareholder or by the Corporation by the delivery
of written notice to the Offeror and the Depository, dated the date it is sent,
specifying the number of Class B Common Shares such
<PAGE> 11
11
Participating Shareholder or the Corporation will acquire and the consideration
such Participating Shareholder or the Corporation will deliver in accordance
with Section 4.3 hereof. In applying the term "holdings" in this Section 4.2 in
the case of Class B Common Shares owned by a trust (other than a voting trust),
the trust shall be considered to own the holding; except that, if the trustee
fails to any extent to exercise a right to acquire Offered Shares, beneficiaries
of the trust who are Participating Shareholders owning more than 50% of either
the then current income or the remainder interest in the trust, and desiring to
exercise such right shall be considered to own the holding in such proportions
as such beneficiaries shall agree upon.
4.3 Class B Common Shares accepted by a Participating Shareholder or
the Corporation in accordance with Section 4.2 hereof may be acquired, at the
election of such purchasing Participating Shareholder or the Corporation, as the
case may be, for cash, Class A Common Shares or a combination of such
considerations as follows:
(a) to the extent such purchasing Participating Shareholder or the
Corporation elects that the price be paid in Class A Common Shares, the
number of Class A Common Shares that shall be delivered in exchange shall
be equal to the number of Class B Common Shares to be exchanged,
<PAGE> 12
12
(b) to the extent such purchasing Participating Shareholder or the
Corporation elects that the price shall be paid in cash, the cash price for
Class B Common Shares shall be equal to the average of the last sale price
(if available) or, if not, the midpoints of the bid and asked prices, of
the Class A Common Shares in the NASDAQ National Market (or in the
principal national securities exchange or market on which the Class A
Common Shares may then be traded) on the 5 trading days preceding the date
of the Offeror's notice sent pursuant to Section 4.1 hereof, as reported
in the Wall Street Journal (or, if such periodical is not then published,
the most comparable periodical then being published) or, in the case of a
transfer under Section 3.1 hereof, such higher price as may have been
specified in such notice.
4.4 The sale or exchange contemplated by these procedures shall be
closed at the principal corporate trust office of the Depository, by delivery of
a certified, cashier's or bank check for the amount of any cash payable and the
delivery of certificates representing the Class B Common Shares and any Class A
Common Shares (endorsed in blank with signature guaranteed), on the day which is
19 business days after the date of the notice given pursuant to Section 4.1
hereof or on such later day as all
<PAGE> 13
13
applicable legal requirements pertaining to such sale or exchange shall have
been met.
5. Changes in Class B Common Shares.
---------------------------------
5.1 In the event of any change in the terms of the Class B Common
Shares, or any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Corporation, or
any merger, reorganization, consolidation or other corporate transaction having
an effect similar to the foregoing, the provisions of this Agreement shall
continue to apply to the Class B Shares of the Corporation or any securities of
any corporation issued in lieu thereof or with respect thereto subject, however,
to such equitable adjustment, if any, as may be necessary to reflect any change
in the relative rights and privileges of the Class A and Class B Common Shares.
5.2 Without limiting the generality of Section 5.1, the Participating
Shareholders acknowledge that the Articles of Incorporation of the Corporation
may be modified (by amendment or merger) to impose restrictions on transfer and
conversion of the Class B Common Shares in terms substantially similar to those
set forth in Exhibit A to this Agreement. The Participating Shareholders shall
vote the Class A Common Shares and Class B Common Shares held by them (as voting
trustee or otherwise) in favor of such modification, and the provisions of this
Agreement
<PAGE> 14
14
shall continue to apply without adjustment to the Class B Common Shares of the
Corporation (or any shares of any corporation issued in lieu thereof or with
respect thereto) owned by them if such modification becomes effective.
6. Reconciliation With Voting Trusts.
----------------------------------
6.1 Certain of the Participating Shareholders are now holders or
beneficial owners of voting trust certificates issued pursuant to a Voting Trust
Agreement dated December 9, 1976. The parties to such agreement hereby agree to
terminate such agreement effective upon the taking effect of provisions of the
Articles of Incorporation of the Corporation substantially to the effect set
forth in Exhibit A hereto. Unless and until such provisions become effective,
such agreement shall remain in full force and effect.
6.2 Certain of the Participating Shareholders are now holders or
beneficial owners of voting trust certificates issued pursuant to a Voting Trust
Agreement dated July 22, 1984 between Irving I. Stone, Judith S. Weiss and Morry
Weiss. Such agreement shall not be affected by this Agreement and shall remain
in full force and effect.
6.3 For purposes of this Agreement, voting trust certificates issued
pursuant to the voting trust agreements referred to in Sections 6.1 and 6.2
shall be treated as certificates for Class B Common Shares, and the Class B
Common Shares represented thereby shall be included in the
<PAGE> 15
15
Class B Common Shares to which this Agreement relates, so that any Participating
Shareholder (or the personal representative of the estate of a deceased
Participating Shareholder, the trustee of any trust agreement or any other
person in possession of Class B Common Shares which are to pass by reason of the
death of a Participating Shareholder) who desires to transfer any of such voting
trust certificates (other than as permitted by Section 2.1) or to convert into
Class A Common Shares any of the Class B Common Shares represented thereby shall
do so only after compliance with the procedures set forth herein. Any notices
required to be given pursuant to Section 4.1 and 4.2 hereof by or to an Offeror
who is a holder of any of such voting trust certificates shall be given
simultaneously, and the periods specified in such Sections shall run
concurrently, with the corresponding notices and periods provided for in Section
6 of each such voting trust agreement unless the group of participating
Shareholders to whom an offering is required to be made under this Agreement
differs from the group to whom such offer is required to be made under either
such voting trust agreement, in which case the offering procedures required by
this Agreement shall commence only upon completion of the procedures thereunder
and shall apply only to Class B Common Shares not theretofore accepted by a
Participating
<PAGE> 16
16
Shareholder pursuant to the procedures applicable under such voting trust
agreement.
6.4 Nothing herein shall prevent any of the Participating Shareholders
from depositing Class B Common Shares pursuant to the above-described voting
trust agreements or pursuant to such other voting trust agreements as they may
wish to enter into which are consistent with the terms of this Agreement and to
which Class B Common Shares are permitted to be transferred pursuant to Section
2.1 of this Agreement.
7. Compliance Provisions.
----------------------
7.1 Subject to the proviso stated below in this Section 7.1,
certificates representing the Class B Common Shares owned of record or
beneficially by the Participating Shareholders at the date of this Agreement
have been deposited with AmeriTrust Company National Association (the
"Depository"), and there has been marked on the face or the back of each such
certificate a legend to the following effect:
The Class B Common Shares, par value $1 per share, of American
Greeting Corporation (the "Corporation") represented by this Certificate
are subject to a Shareholders' Agreement dated as of November 19, 1984 and
originally entered into by the Corporation and Irving I. Stone, Morris S.
Stone, Harry H. Stone, Morry Weiss and other parties. Pursuant to such
Agreement, such Shares may not be sold, given or otherwise transferred or
converted into Class A Common Shares, par value $1 per share, of the
Corporation (except for transfers to certain persons specified in such
Agreement) except upon compliance with certain procedures,
<PAGE> 17
17
including, without limitation, offer of such Shares to certain other
shareholders of the Corporation and the Corporation and, in certain
situations, conversion into Class A Common Shares. The Corporation will
mail to the holder hereof a copy of such Agreement without charge within
five days after receipt of a written request therefor.
Each Participating Shareholder shall, to the extent legally able to do so,
forthwith upon becoming a Participating Shareholder by signing this Agreement
and thereafter upon becoming the record or beneficial owner of any other Class B
Common Shares, cause the certificates representing the same to be deposited with
the Depository for application of such legend, and the certificates representing
all Class B Common Shares now or hereafter owned (of record or beneficially) by
any of the Participating Shareholders shall continue to bear such legend and be
held by the Depository until such Class B Common Shares are converted into Class
A Common Shares in accordance with this Agreement or, if earlier, the
termination of this Agreement in accordance with the terms hereof; PROVIDED,
HOWEVER, that any Participating Shareholder may cause possession of such
certificates to be given to or retained by any pledgee to be held as security in
accordance with Section 2.2 hereof upon delivery to the Depository of the
written agreement of the pledgee referred to in such Section; and PROVIDED
FURTHER, that any Participating Shareholder owning any Class B Common Shares
held by a pledgee at the time such Participating Shareholder becomes a party to
this Agreement need only use reasonable
<PAGE> 18
18
efforts to cause such legend to be applied and to cause such pledgee to
agree in writing to be bound by the terms of this Agreement, and if such
Participating Shareholder is unable to cause such results the certificates
representing such Class B Common Shares may be retained by such pledgee
without his signing this Agreement and without such legend being applied.
Each Participating Shareholder shall at all times keep the Depository
advised of the number of Class B Common Shares such Participating
Shareholder owns.
7.2 The further rights and duties of the Depository shall be
governed by the terms and conditions of escrow contained in Exhibit B
attached hereto.
8. Amendment and Termination.
--------------------------
This Agreement may be amended or the term thereof extended only by a
written instrument referring specifically to this Agreement and signed by all of
the Participating Shareholders, provided, however, that
(a) any amendment to this Agreement for the purpose of including
additional persons among those to whom transfer of Class B Common Shares may be
made pursuant to Section 2.1 hereof,
(b) any amendment to change the Depository or to change the terms and
conditions of escrow set forth in Exhibit B hereto,
(c) any other amendment (not extending the term hereof) if no
Participating Shareholder files written objection thereto with the Depository
within 30 days after notice thereof (which notice shall include a statement that
Participating
<PAGE> 19
19
Shareholders have a right to file a written objection) is given
to all Participating Shareholders, and
(d) any instrument of termination,
need only be signed by Participating Shareholders owning beneficially
75% or more of the Class B Common Shares owned by all of the Participating
Shareholders. This Agreement, unless extended in accordance with the
immediately preceding sentence, shall terminate on December 31, 2014. This
Agreement, moreover, shall terminate in any event 21 years after the death of
the last to die of the lineal descendants of Jacob Sapirstein living on the
date of this Agreement.
9. Miscellaneous.
-------------
9.1 Notwithstanding any provision hereof to the contrary,
Class B Common Shares may be sold to the Corporation at any time it may offer to
purchase the same, free of the limitations provided for in this Agreement.
9.2 For purposes of this Agreement, ownership of Class
B Common Shares shall include ownership through the Employees' Retirement Profit
Sharing Plan of the Corporation, but only through the Common Stock Fund held
thereunder, and each separate account in which such shares are held shall be
considered a separate trust; provided, however, that notwithstanding Section 7.1
hereof, certificates representing Class B Common Shares held by the Trustee for
the benefit of participants in such plan shall remain in the custody of such
Trustee.
<PAGE> 20
20
9.3 As used herein, the term "spouse" includes a widow or a widower.
9.4 As used herein, the term "current trust interest" means the
interest of any beneficiary of a trust to whom interest or principal is
currently distributable either in the discretion of the trustee or otherwise.
9.5 As used herein, the term "business day" means any day other than
Saturday, Sunday or a federal holiday, and shall consist of the time period from
12:01 a.m. through 12:00 midnight, Eastern Standard Time. In computing any time
period for purposes of this Agreement, the date of the event which begins the
running of such time period shall be included except that if such event occurs
on other than a business day such period shall begin to run on and shall include
the first business day thereafter.
9.6 As used herein, the term "personal representative" means the
executor, administrator or other personal representative of the estate of a
deceased Participating Shareholder.
9.7 All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed given when
delivered in hand or 72 hours after being deposited in a United States Post
Office, postage prepaid, registered or certified mail, and addressed to the
addressee at the address corresponding to such addressee's signature below, or
to such other address
<PAGE> 21
21
as may have been specified by such addressee to the Depository.
9.8 This Agreement shall inure to the benefit of and be binding
upon the Participating Shareholders and the Corporation, any pledgee who agrees
to be bound hereby pursuant to Section 2.2 hereof and their respective
successors, heirs, personal representatives, legatees and assigns. All
references herein to the Corporation shall include any other corporation to
which this Agreement may be assigned, by operation of law or otherwise, in
connection with any merger, reorganization, consolidation or other corporate
transaction having an effect similar to the foregoing, and all references herein
to the Articles of Incorporation of the Corporation shall refer to the Charter
of any such other corporation, however denominated.
9.9 If any provision of this Agreement shall be found unenforceable by
any court of competent jurisdiction to any extent, such holding shall not
invalidate or render unenforceable such provision to any greater extent or to
render unenforceable or invalidate any other provision hereof.
9.10 This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument, without production of the others.
<PAGE> 22
22
9.11 This Agreement shall be construed in accordance with the
internal substantive laws of the State of Ohio or such other jurisdiction as may
at the time of construction be the jurisdiction of incorporation of the issuer
of the Class B Common Shares.
IN WITNESS WHEREOF, the Participating Shareholders and the Corporation
have executed this Agreement or caused this Agreement to be executed in their
respective names, as the case may be, all as of the date and year first above
written.
Signature Address
--------- -------
/s/ Irving I. Stone 10500 American Road
------------------------ Cleveland, Ohio 44144
Irving I. Stone
/s/ Morris S. Stone 10500 American Road
------------------------ Cleveland, Ohio 44144
Morris S. Stone
/s/ Harry H. Stone 1540 Leader Building
------------------------ Cleveland, Ohio 44114
Harry H. Stone
/s/ Morry Weiss 10500 American Road
------------------------ Cleveland, Ohio 44144
Morry Weiss
/s/ Judith S. Weiss 4500 University Parkway
------------------------ University Heights, Ohio 44118
Judith S. Weiss
/s/ Judith S. Weiss 4500 University Parkway
------------------------ University Heights, Ohio 44118
Judith S. Weiss,
as Trustee under Revocable
Trust Agreement originally
dated April 21, 1947 for
the benefit of
Irving I. Stone
<PAGE> 23
23
AMERITRUST COMPANY Corporate Trust Division
NATIONAL ASSOCIATION, 900 Euclid Avenue
as Trustee under Cleveland, Ohio 44101
Trust Agreement
dated February 16,
1968 for the benefit
of Morris S. Stone
By /s/ , VP
--------------------------------
Title: Vice President
And /s/
-------------------------------
Title: Trust Officer
/s/ Harry H. Stone 1540 Leader Building
----------------------------------- Cleveland, Ohio 44114
/s/ Douglas B. Rose
-----------------------------------
Harry H. Stone and
Douglas B. Rose,
as successor Trustees
under Trust Agreement
dated April 21, 1947
for the benefit of
Harry S. Stone
/s/ Irving I. Stone
-----------------------------------
Irving I. Stone, as Trustee
under the Voting Trust Agreement
referred to in Sections 6.1 and
6.2 hereof
/s/ Morris S. Stone
-----------------------------------
Morris S. Stone, as Trustee
under the Voting Trust Agreement
referred to in Section 6.1 hereof
/s/ Morry Weiss
-----------------------------------
Morry Weiss as Trustee
under the Voting Trust Agreement
referred to in Section 6.2 hereof
/s/ Judith S. Weiss
-----------------------------------
Judith S. Weiss, as Trustee
under the Voting Trust Agreement
referred to in Section 6.2 hereof
<PAGE> 24
24
AMERICAN GREETINGS 10500 American Road
Cleveland, Ohio 44144
By /s/ Morry Weiss
------------------------------
Title: President
<PAGE> 25
SHAREHOLDERS' AGREEMENT
-----------------------
COUNTERPART SIGNATURE PAGE
--------------------------
The undersigned, intending to become a party to and to be bound by the
Shareholders' Agreement dated as of November 19, 1984 (the "Agreement")
pertaining to Class B Common Shares, par value $1 per share, of American
Greetings Corporation, an Ohio Corporation, hereby executes this counterpart
signature page of the Agreement as of the 19th day of November, 1984.
/s/ Jacob Sapirstein
-----------------------------
JACOB SAPIRSTEIN, for himself
individually and as Trustee
under the Voting Trust
Agreement referred to in
Section 6.1 of the Agreement
<PAGE> 26
AmeriTrust Company National Association, by its duly authorized
officers, hereby acknowledges receipt of an executed counterpart of the
foregoing Shareholders' Agreement and agrees to act as Depository thereunder.
AMERITRUST COMPANY NATIONAL
ASSOCIATION, as Depository
By /s/
---------------------------
Title: Vice President
And /s/
--------------------------
Title: Trust Officer
Address: Corporate Trust Division
900 Euclid Avenue
Cleveland, Ohio 44101
<PAGE> 27
EXHIBIT A
---------
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 54,500,000, consisting of 50,000,000 shares of Class
A Common Stock, par value $1 per share ("Class A Common Stock"), and 4,500,000
shares of Class B Common Stock, par value $1 per share ("Class B Common Stock").
The powers, rights, privileges, qualifications, limitations and
restrictions of each class of common stock are as follows:
1. Each share of Class A Common Stock shall be entitled to one vote
upon all matters presented to stockholders. Each share of Class B Common Stock
shall be entitled to ten votes upon all matters presented to stockholders. Any
proposal to amend this Certificate of Incorporation to increase the authorized
number of shares of Class A Common Stock or the authorized number of shares of
Class B Common Stock shall require for its adoption the affirmative vote of the
holders of at least two-thirds of the then outstanding shares of Class A Common
Stock, voting as a class, and the affirmative vote of at least two-thirds of the
then outstanding shares of Class B Common Stock, voting as a class.
2. (a) Subject to and upon compliance with the provisions of this
Article FOURTH, the shares of Class B Common Stock shall be convertible at the
option of the holders thereof into shares of Class A Common Stock on the basis
of one share of Class A Common Stock for each share of Class B Common Stock so
converted.
(b) The holders of shares of Class B Common Stock may exercise the
conversion privilege in respect thereof by delivering to any Transfer Agent of
the Class B Common Stock (i) the certificate for the shares of Class B Common
Stock to be converted and (ii) written notice that the holder elects to convert
such shares and stating the name or names (with address) in which the
certificate for the shares of Class A Common Stock is to be issued. Conversion
shall be deemed to have been effected on the date when such delivery is made,
and such date is referred to herein as the "conversion date." On the conversion
date or as promptly thereafter as practicable the Corporation shall issue and
deliver to the holder of the shares of Class B Common Stock surrendered for
conversion, or on his written order, a certificate for the number of full shares
of Class A Common Stock issuable upon the conversion of such shares of Class B
Common Stock. The person in whose name the
<PAGE> 28
2
stock certificate is to be issued shall be deemed to have become a holder of
shares of Class A Common Stock of record on the conversion date. The Corporation
hereby reserves and shall at all times reserve and keep available, out of its
authorized and unissued Class A Common Stock, for the purpose of effecting the
conversion of the Class B Common Stock, such number of its duly authorized
shares of Class A Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of Class B Common Stock. Shares
of Class B Common Stock which are converted into shares of Class A Common Stock
as provided in this Article FOURTH shall not be reissued.
3. (a) No person (other than the Corporation) holding shares of Class B
Common Stock (herein referred to as a "Class B Holder") may transfer, and the
Corporation shall not register the transfer of, shares of Class B Common Stock,
whether by sale, assignment, gift, bequest, appointment or otherwise, except to
the Corporation or a Permitted Transferee of such Class B Holder.
(b) For purposes of this paragraph (3), the term
"Permitted Transferee" shall have the following meaning:
(i) in the case of a Class B Holder who is a natural person holding
record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means:
(A) a grandparent of such Class B Holder, (B) a lineal descendant of a
grandparent of such Class B Holder, (C) a spouse of a lineal
descendant of a grandparent of such Class B Holder, (D) a lineal
descendant of any spouse of a lineal descendent of a grandparent of
such Class B Holder or the spouse of any such spouse's lineal
descendant, (E) a gratuitous transferee that is an organization
contributions to which are deductible for federal income, estate or
gift tax purposes (any such gratuitous transferee being herein
referred to as a "Charitable Organization"), and (F) the trustee of a
trust (including, without limitation, a voting trust) for the
exclusive benefit of one or more of the foregoing if such trust by its
terms prohibits transfer of shares of Class B Common Stock to persons
other than Permitted Transferees referred to in the foregoing
subclauses of this clause (i);
(ii) in the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust other than a trust
described in clause (iii) below, "Permitted Transferee" means (A) the
person
<PAGE> 29
3
who established such trust, and (B) a Permitted Transferee of such person
determined pursuant to clause (i) above;
(iii) in the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust which was
irrevocable on the record date, for determining the persons to whom the
Class B Common Stock is first distributed by the Corporation, "Permitted
Transferee" means any person to whom or for whose benefit principal may be
distributed either during or at the end of the term of such trust whether
by power of appointment or otherwise;
(iv) in the case of a Class B Holder holding record (but not
beneficial) ownership of the shares of Class B Common Stock in question as
nominee for the person who was the beneficial owner thereof on the record
date, "Permitted Transferee" means such beneficial owner and any Permitted
Transferee of such beneficial owner determined pursuant to clause (i),
(ii), (iii), (v) or (vi) hereof, as the case may be;
(v) in the case of a Class B Holder which is a partnership holding
record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means any partner of such partnership;
(vi) in the case of a Class B Holder which is a corporation (other
than a Charitable Organization described in subclause (E) of clause (i)
above) holding record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means any stockholder of
such corporation receiving shares of Class B Common Stock through a
dividend or redemption or through a distribution made upon liquidation of
such corporation, and the survivor of a merger or consolidation of such
corporation; and
(vii) in the case of a Class B Holder which is the estate of a
deceased Class B Holder, or which is the estate of a bankrupt or insolvent
Class B Holder, and provided such deceased, bankrupt or insolvent Class B
Holder, as the case may be, held record and beneficial ownership of the
shares of Class B Common Stock in question, "Permitted Transferee" means a
Permitted Transferee of such deceased, bankrupt or insolvent Class B Holder
as determined pursuant to clause (i), (v) or (vi) above, as the case may
be.
(c) Notwithstanding anything to the contrary set forth herein, any
Class B Holder may pledge such Holder's shares of Class B Common Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares
<PAGE> 30
4
shall not be transferred to or registered in the name of the pledgee and shall
remain subject to the provisions of this paragraph 3. In the event of
foreclosure or other similar action by the pledgee, such pledged shares of Class
B Common Stock may only be transferred to a Permitted Transferee of the pledgor
or converted into shares of Class A Common Stock, as the pledgee may elect.
(d) For purposes of this paragraph 3:
(i) the relationship of any person that is derived by or through legal
adoption prior to age 18 shall be considered a natural one;
(ii) the term "spouse" shall include a widow or widower;
(iii) each grandparent of any joint owner of particular shares of
Class B Common Stock shall be considered a grandparent of all joint owners
of such shares;
(iv) a minor for whom shares of Class B Common Stock are held pursuant
to a Uniform Gifts to Minors Act or similar law shall be considered a Class
B Holder of such shares;
(v) in applying the term "exclusive benefit," a contingent trust
interest having at the time of transfer an actuarial value (under actuarial
tables then used for federal gift tax purposes for gifts between private
individuals) of not more than five percent of the value of the assets of
the trust shall be ignored; and
(vi) unless otherwise specified, the term "person" means both natural
persons and legal entities.
(e) Any purported transfer of shares of Class B Common Stock not
permitted by this Article FOURTH shall be void and of no effect and the
purported transferee shall have no rights as a stockholder of the Corporation
and no other rights against or with respect to the Corporation. The Corporation
may, as a condition to the transfer or the registration of transfer of shares of
Class B Common Stock to a purported Permitted Transferee, require the furnishing
of such affidavits or other proof as it deems necessary to establish that such
transferee is a Permitted Transferee.
(f) The Corporation shall conspicuously note on the certificates
representing shares of Class B Common Stock the restrictions on transfer and
registration of transfer imposed by this paragraph (3).
<PAGE> 31
5
4. Subject to and upon compliance with the provisions of this
Article FOURTH, authorized and unissued shares of Class B Common Stock may be
issued (after the date shares of Class B Common Stock are first issued by the
Corporation) only simultaneously with the issuance of shares of Class A Common
Stock for cash at the same cash price (without deduction for any commissions
payable or discounts allowed) per share; provided, however, that the number of
shares of Class B Common Stock so issued shall not exceed the product of (i) the
number of shares of Class A Common Stock being so issued and (ii) the ratio of
the number of shares of Class B Common Stock issued and outstanding at the
record date fixed for determining the holders of Class B Common Stock who have
the right as provided below to purchase such shares of Class B Common Stock
being issued, to the number of shares of Class A Common Stock issued and
outstanding at such date, except that authorized and unissued shares of Class B
Common Stock may be issued without regard to the foregoing limitation pursuant
to any dividend reinvestment plan approved by the Board of Directors of the
Corporation.
5. The holders of shares of Class B Common Stock, upon the sale for
cash of additional shares of Class B Common Stock, have the right to purchase
such shares in proportion to their respective holdings of shares of Class B
Common Stock at the price prescribed in the preceding paragraph (4) during such
reasonable time and on such reasonable terms as may be fixed by the Board of
Directors of the Corporation. Such terms may include provision for the purchase
of shares of Class B Common Stock offered to holders who do not timely exercise
such right by the other holders of shares of Class B Common Stock; provided,
however, that no shareholder shall have any preemptive right with respect to any
shares of Class B Common Stock issued pursuant to any dividend reinvestment plan
approved by the Board of Directors of the Corporation. The holders of shares of
Class A Common Stock and shares of Class B Common Stock shall have no other
preemptive right to purchase or have offered to them for purchase any additional
shares of stock of any class of the Corporation.
6. No change of outstanding shares of Class A Common Stock or shares
of Class B Common Stock so as to effect a share dividend thereon or a split or
combination thereon shall be made unless a corresponding change is made with
respect to the shares of the stock of the other class.
7. Except as above provided each share of Class A Common Stock and
each share of Class B Common Stock shall be identical and have similar rights,
privileges, qualifications, limitations and restrictions.
<PAGE> 32
EXHIBIT B
---------
TERMS AND CONDITIONS OF ESCROW
SECTION 1. Upon receiving certificates representing Class B Common
Shares or Voting Trust Certificates representing Class B Common Shares (the
"Certificates") to be deposited with AmeriTrust Company National Association
(the "Depository") pursuant to the terms and conditions of the Agreement, the
Depository shall hold the same in escrow upon the terms and conditions
hereinafter set forth.
SECTION 2. The Depository shall mark the appropriate legend on the face
or the back of each Certificate deposited hereunder in accordance with Section
7.1 of the Agreement.
SECTION 3. The Depository shall hold the Certificates until such time
as it shall receive written notification, pursuant to the Agreement, that Class
B Common Shares are to be converted or transferred.
(a) In the event that such written notification states that Class
B Common Shares are to be converted or transferred otherwise than as
provided under Section 2.1 of the Agreement, then the Depository shall
deliver the Certificates and take such further action, as contemplated
by the Agreement, in accordance with written instructions executed by
the parties to the Agreement who are transferring, converting or
acquiring the Class B Common Shares represented by such Certificates;
(b) In the event that such written notification states that Class
B Common Shares are to be transferred by a Participating Shareholder
as provided under Section 2.1 of the Agreement, then the Depository
shall deliver the Certificates and take such further action, as
contemplated by the Agreement, in accordance with the written
instructions of the Participating Shareholder making such transfer.
The Depository may, as a condition to taking any such action, require
the furnishing of affidavits, or other proof as it deems necessary to
establish that such transfer is permitted by such Section 2.1.
(c) In no event shall the Depository be required to take any
action under this Section 3 until it shall have received proper
written instructions as stated herein.
<PAGE> 33
2
SECTION 4. DUTIES AND ADVERSE CLAIMS. The duties and obligations of the
Depository shall be determined solely by the express provisions of the Agreement
including this Exhibit "B" (hereinafter collectively referred to as the
Agreement). In the event of any disagreement or the presentation of any adverse
claim or demand in connection with the delivery of Certificates, the Depository
shall, at its option, be entitled to refuse to comply with any such claims or
demands during the continuance of such disagreement and may refrain from
delivering any Certificates affected hereby, and in so doing, the Depository
shall not become liable to any party to the Agreement or to any other person due
to its failure to comply with such adverse claim or demand. The Depository shall
be entitled to continue, without liability, to refrain and refuse to act:
(a) Until authorized to act by a court order from a court having
jurisdiction of the parties and the property, after which
time the Depository shall be entitled to act in conformity
with such adjudication; or
(b) Until all differences shall have been adjusted by agreement
and the Depository shall have been notified thereof and
shall have been directed in writing, signed jointly or in
counterpart by all persons making adverse claims or demands,
at which time the Depository shall be protected in acting in
compliance therewith.
SECTION 5. DEPOSITORY'S LIABILITY LIMITED. The Depository shall not be
liable to anyone whatsoever by reason of any error of judgment or for any act
done or step taken or omitted by it in good faith or for any mistake of fact or
law or for anything which it may do or refrain from doing in connection herewith
unless caused by or arising out of its own gross negligence or willful
misconduct. The parties to the Agreement represent to the Depository that they
have and shall continue to solicit the advice of their respective counsel
regarding compliance with all applicable state and federal securities laws in
connection with the transactions contemplated by the Agreement and that they
will act in accordance with such advice. The Depository shall have no
responsibility to ensure compliance with any such securities laws, and such
responsibility rests solely with the parties to the Agreement.
SECTION 6. RELIANCE BY DEPOSITORY ON DOCUMENTS, ETC. The Depository
shall be entitled to rely and shall be protected in acting in reliance upon any
instructions or directions furnished to it in writing pursuant to any provisions
of the
<PAGE> 34
3
Agreement and shall be entitled to treat as genuine, and as the document it
purports to be, any letter, paper or other document furnished to it and believed
by it to be genuine and to have been signed and presented by the proper party or
parties. Without limiting the generality of the foregoing, in the absence of
written notice received by the Depository to the contrary, the Depository shall
be entitled to rely upon its due receipt of any notice under the Agreement as
conclusive evidence that such notice was given to all other persons as required
by the Agreement if such notice so indicates by its terms.
SECTION 7. INDEMNIFICATION AND LEGAL COUNSEL FOR DEPOSITORY. The
parties to the Agreement hereby agree to indemnify the Depository and save it
harmless from and against all losses, damages, costs, charges, payments,
liabilities and expenses, including the costs of litigation, investigation and
reasonable legal fees incurred by the Depository and arising directly or
indirectly out of its role as Depository pursuant to the Agreement, including
such losses, damages, costs, charges, payments, and suits made or asserted,
whether groundless or otherwise, against the Depository unless the same arise
out of the willful misconduct or gross negligence of the Depository. The parties
to the Agreement agree that the Depository does not assume any responsibility
for the failure of any of the parties to make payments or perform the conditions
of the Agreement, nor shall the Depository be responsible for the collection of
any monies provided to be paid to it. The Depository may consult with counsel of
its own choice and shall have full and complete authorization and protection for
any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel. The provisions of this Section 7 shall survive
termination of the escrow arrangement contemplated hereby.
SECTION 8. COMPENSATION. The parties to the Agreement agree to pay the
Depository reasonable compensation for the services to be rendered hereunder and
will pay or reimburse the Depository upon request for all expenses,
disbursements and advances, including reasonable attorneys fees, incurred or
made by it in connection with carrying out its duties hereunder.
SECTION 9. LIENS. The Depository shall have a first lien on all items
held by it herewith for its compensation and for any costs, liability, expenses,
or fees it may incur and shall not be required to deliver or pay over any
instrument, money, or other property deposited with it under this Agreement
unless and until it shall have received full payment for its compensation,
costs, liability, expenses, or fees.
<PAGE> 35
4
SECTION 10. RESIGNATION. The Depository shall have the right to resign
upon giving thirty (30) days written notice by mailing said written notice
thereof to the proper party or parties; provided that no such resignation shall
become effective until a successor has been duly appointed to act as Depository
by amendment to the Agreement and such successor has agreed so to act.