FORM OF
RESTATED CERTIFICATE OF INCORPORATION
AS AMENDED
OF
GENERAL DATACOMM INDUSTRIES, INC.
It is hereby certified that:
The present name of the corporation (hereinafter called the
"corporation") is General DataComm Industries, Inc., which is the name under
which the corporation was originally incorporated; and the date of filing the
original certificate of incorporation of the corporation with the Secretary of
State of the State of Delaware is January 28, 1969.
The provisions of the certificate of incorporation of the
corporation as heretofore amended and/or supplemented, are hereby restated and
integrated into the single instrument which is hereinafter set forth, and which
is entitled Restated Certificate of Incorporation of General DataComm
Industries, Inc., without further amendment and without any discrepancy between
the provisions of the certificate of incorporation as heretofore amended and
supplemented and the provisions of the said single instrument hereinafter set
forth.
The Board of Directors of the corporation has duly adopted
this Restated Certificate of Incorporation pursuant to the provisions of Section
245 of the General Corporation Law of the State of Delaware in the form set
forth as follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
GENERAL DATACOMM INDUSTRIES, INC
FIRST: The name of the corporation (hereinafter called the
"corporation") is
General DataComm Industries, Inc.
SECOND: The address, including street, number, city, and
county, of the registered office of the corporation in the State of Delaware is
229 South State Street, City of Dover, County of Kent; and the name of the
registered agent of the corporation in the State of Delaware at such address is
The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and of the purposes to be
conducted and promoted by the corporation, which shall be in addition to the
authority of the corporation to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware, is as follows:
To act as consultants and engage, on its own behalf
or for others, in research, appraisal, development and other activities relating
to the application, structure, manufacture, fabrication, installation,
construction, maintenance, operation, repair, functioning, use and other
services relating to electronic data processing systems and components of
electronic data processing and computing machines of every kind, nature and
description, and in connection therewith, but not by way of limitation, prepare
and submit analyses, interpretations, evaluations and recommendations in the
fields of electronic data processing and computer system technology and
programming techniques.
To construct, conduct, maintain and operate offices,
sites, centers, laboratories and facilities for research with respect to
electronic data processing systems, computer machines, computing and programming
procedures, and other related fields, either for itself or others.
To design, invent, develop, devise, manufacture,
fabricate, assemble, install, service, maintain, repair, alter, buy, sell,
import, export, license as licensor or licensee, lease as lessor or lessee,
distribute, job, enter into, negotiate, execute, acquire, receive, obtain, hold,
grant, assign and transfer contracts, selling rights, licensing arrangements,
options, franchises and other rights in respect of, and generally deal in and
with, at wholesale and retail, as principal, agent, representative, broker,
factor, merchant, distributor, jobber, advisor, or in any other lawful capacity,
goods, wares, merchandise, commodities and unimproved, improved, finished,
processed, and other real, personal and mixed property of any and all kinds, and
without limiting the generality of the foregoing, any and all kinds of
computers, electronic data processing apparatus, information
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analyses devices, electronic and other mechanical devices, machines,
contrivances, appliances, accessories, equipment and supplies for assembling,
processing, analyzing and handling data and reporting the findings and
conclusions required therefrom, together with the components, resultants and
by-products thereof; and to acquire by purchase or otherwise own, hold, lease,
mortgage, sell or otherwise dispose of, erect, construct, make, alter, enlarge,
improve and to aid or subscribe toward the construction, acquisition or
improvement of any laboratories, research and experimental centers and
facilities, factories, shops, storehouses, buildings and commercial and retail
establishments of every character, including all equipment, fixtures, machinery,
implements and supplies necessary, or incidental to, or connected with, any of
the purposes or business of the corporation; and generally to perform any and
all acts connected therewith or arising therefrom or incidental thereto, and all
acts proper or necessary for the purpose of the business.
To purchase, receive, take by grant, gift, devise,
bequest or otherwise, lease, or otherwise acquire, own, hold, improve, employ,
use and otherwise deal in and with real or personal property, or any interest
therein, wherever situated, and to sell, convey, lease, exchange, transfer or
otherwise dispose of, or mortgage or pledge, all or any of its property and
assets, or any interest therein, wherever situated.
To engage generally in the real estate business as
principal, agent, broker, and in any lawful capacity, and generally to take,
lease, purchase, or otherwise acquire, and to own, use, hold, sell, convey,
exchange, lease, mortgage, work, clear, improve, develop, divide, and otherwise
handle, manage, operate, deal in and dispose of real estate, real property,
lands, multiple-dwelling structures, houses, buildings and other works and any
interest or right therein; to take, lease, purchase or otherwise acquire, and to
own, use, hold, sell, convey, exchange, hire, lease, pledge, mortgage, and
otherwise handle, and deal in and dispose of, as principal, agent, broker, and
in any lawful capacity, such personal property, chattels, chattels real, rights,
easements, privileges, choses in action, notes, bonds, mortgages, and securities
as may lawfully be acquired, held, or disposed of; and to acquire, purchase,
sell, assign, transfer, dispose of, and generally deal in and with, as
principal, agent, broker, and in any lawful capacity, mortgages and other
interests in real, personal,
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and mixed properties; to carry on a general construction, contracting, building,
and realty management business as principal, agent, representative, contractor,
subcontractor, and in any other lawful capacity.
To carry on a general mercantile, industrial,
investing, and trading business in all its branches; to devise, invent,
manufacture, fabricate, assemble, install, service, maintain, alter, buy, sell,
import, export, license as licensor or licensee, lease as lessor or lessee,
distribute, job, enter into, negotiate, execute, acquire and assign contracts in
respect of, acquire, receive, grant, and assign licensing arrangements, options,
franchises, and other rights in respect of, and generally deal in and with, at
wholesale and retail, as principal, and as sales, business, special, or general
agent, representative, broker, factor, merchant, distributor, jobber, advisor,
and in any other lawful capacity, goods, wares, merchandise, commodities, and
unimproved, improved, finished, processed, and other real, personal, and mixed
property of any and all kinds, together with the components, resultants, and
by-products thereof.
To apply for, register, obtain, purchase, lease, take
licenses in respect of or otherwise acquire, and to hold, own, use, operate,
develop, enjoy, turn to account, grant licenses and immunities in respect of,
manufacture under and to introduce, sell, assign, mortgage, pledge or otherwise
dispose of, and, in any manner deal with and contract with reference to:
(a) inventions, devices, formulae, processes and
any improvements and modifications thereof;
(b) letters patent, patent rights, patented
processes, copyrights, designs, and similar rights, trade-marks, trade names,
trade symbols and other indications of origin and ownership granted by or
recognized under the laws of the United States of America, the District of
Columbia, any state or subdivision thereof, and any commonwealth, territory,
possession, dependency, colony, possession, agency or instrumentality of the
United States of America and of any foreign country, and all rights connected
therewith or appertaining thereunto;
(c) franchises, licenses, grants and concessions.
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To guarantee, purchase, take, receive, subscribe for,
and otherwise acquire, own, hold, use, and otherwise employ, sell, lease,
exchange, transfer, and otherwise dispose of, mortgage, lend, pledge, and
otherwise deal in and with, securities (which term, for the purpose of this
Article THIRD, includes, without limitation of the generality thereof, any
shares of stock, bonds, debentures, notes, mortgages, other obligations, and any
certificates, receipts or other instruments representing rights to receive,
purchase or subscribe for the same, or representing any other rights or
interests therein or in any property or assets) of any persons, domestic and
foreign firms, associations, and corporations, and by any government or agency
or instrumentality thereof; to make payment therefor in any lawful manner; and,
while owner of any such securities, to exercise any and all rights, powers and
privileges in respect thereof, including the right to vote.
To make, enter into, perform and carry out contracts
of every kind and description with any person, firm, association, corporation or
government or agency or instrumentality thereof.
To acquire by purchase, exchange or otherwise, all,
or any part of, or any interest in, the properties, assets, business and good
will of any one or more persons, firms, associations or corporations heretofore
or hereafter engaged in any business for which a corporation may now or
hereafter be organized under the laws of the State of Delaware; to pay for the
same in cash, property or its own or other securities; to hold, operate,
reorganize, liquidate, sell or in any manner dispose of the whole or any part
thereof; and in connection therewith, to assume or guarantee performance of any
liabilities, obligations or contracts of such persons, firms, associations or
corporations, and to conduct the whole or any part of any business thus
acquired.
To lend money in furtherance of its corporate
purposes and to invest and reinvest its funds from time to time to such extent,
to such persons, firms, associations, corporations, governments or agencies or
instrumentalities thereof, and on such terms and on such security, if any, as
the Board of Directors of the corporation may determine.
To make contracts of guaranty and suretyship of all
kinds and endorse or guarantee the payment of principal, interest or
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dividends upon, and to guarantee the performance of sinking fund or other
obligations of, any securities, and to guarantee in any way permitted by law the
performance of any of the contracts or other undertakings in which the
corporation may otherwise be or become interested, of any persons, firm,
association, corporation, government or agency or instrumentality thereof, or of
any other combination, organization or entity whatsoever.
To borrow money without limit as to amount and at
such rates of interest as it may determine; from time to time to issue and sell
its own securities, including its shares of stock, notes, bonds, debentures, and
other obligations, in such amounts, on such terms and conditions, for such
purposes and for such prices, now or hereafter permitted by the laws of the
State of Delaware and by this certificate of incorporation, as the Board of
Directors of the corporation may determine; and to secure any of its obligations
by mortgage, pledge or other encumbrance of all or any of its property,
franchises and income.
To be a promoter or manager of other corporations of
any type or kind; and to participate with others in any corporation,
partnership, limited partnership, joint venture, or other association of any
kind, or in any transaction, undertaking or arrangement which the corporation
would have power to conduct by itself, whether or not such participation
involves sharing or delegation of control with or to others.
To draw, make, accept, endorse, discount, execute,
and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable instruments and evidences of
indebtedness whether secured by mortgage or otherwise, as well as to secure the
same by mortgage or otherwise so far as may be permitted by the laws of the
State of Delaware.
To purchase, receive, take, reacquire or otherwise
acquire, own and hold, sell, lend, exchange, reissue, transfer or otherwise
dispose of, pledge, use, cancel, and otherwise deal in and with its own shares
and its other securities from time to time to such an extent and in such manner
and upon such terms as the Board of Directors of the corporation shall
determine, provided that the corporation shall not use its funds or property for
the purchase of its own shares of capital stock when its capital is
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impaired or when such use would cause any impairment of its capital, except to
the extent permitted by law.
To organize, as an incorporator or cause to be
organized under the laws of the State of Delaware, or of any other State of the
United States of America, or of the District of Columbia, or of any
commonwealth, territory, dependency, colony, possession, agency, or
instrumentality of the United States of America, or of any foreign country, a
corporation or corporations for the purpose of conducting and promoting any
business or purpose for which corporations may be organized, and to dissolve,
wind up, liquidate, merge or consolidate any such corporation or corporations or
to cause the same to be dissolved, wound up, liquidated, merged or consolidated.
To conduct its business, promote its purposes, and
carry on its operations in any and all of its branches and maintain offices both
within and without the State of Delaware, in any and all States of the United
States of America, in the District of Columbia, and in any or all commonwealths,
territories, dependencies, colonies, possessions, agencies, or instrumentalities
of the United States of America and of foreign governments.
To promote and exercise all or any part of the
foregoing purposes and powers in any and all parts of the world, and to conduct
its business in all or any of its branches as principal, agent, broker, factor,
contractor, and in any other lawful capacity either alone or through or in
conjunction with any corporations, associations, partnerships, firms, trustees,
syndicates, individuals, organizations, and other entities in any part of the
world, and, in conducting its business and promoting any of its purposes, to
maintain offices, branches and agencies in any part of the world, to make and
perform any contracts and to do any acts and things, and to carry on any
business, and to exercise any powers and privileges suitable, convenient, or
proper for the conduct, promotion, and attainment of any of the business and
purposes herein specified or which at any time may be incidental thereto or may
appear conducive to or expedient for the accomplishment of any of such business
and purposes and which might be engaged in or carried on by a corporation
incorporated or organized under the General Corporation Law of the State of
Delaware, and to have and exercise all of the powers conferred
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by the laws of the State of Delaware upon corporations incorporated or organized
under the General Corporation Law of the State of Delaware.
The foregoing provisions of this Article THIRD shall be
construed both as purposes and powers and each as an independent purpose and
power. The foregoing enumeration of specific purposes and powers shall not be
held to limit or restrict in any manner the purposes and powers of the
corporation, and the purposes and powers herein specified shall, except when
otherwise provided in this Article THIRD, be in no wise limited or restricted by
reference to, or inference from, the terms of any provision of this or any other
Article of this certificate of incorporation; provided, that the corporation
shall not conduct any business, promote any purpose, or exercise any power or
privilege within or without the State of Delaware which, under the laws thereof,
the corporation may not lawfully conduct, promote, or exercise.
FOURTH: The aggregate number of shares of stock of all classes
which the Corporation shall have authority to issue is 63,000,000, consisting of
50,000,000 shares of Common Stock having a par value of $.10 per share,
10,000,000 shares of Class B Stock having a par value of $.10 per share and
3,000,000 shares of Preferred Stock having a par value of $1.00 per share.
The powers preferences and the relative, participating,
optional and other rights and the qualifications, limitations and restrictions
thereof, of each class of stock, and the express grant of authority to the Board
of Directors to fix by resolution the designations and the powers, preferences
and rights of each share of Preferred Stock and the qualifications, limitations
and restrictions thereof which are not fixed by this Certificate of
Incorporation, are as follows:
A. COMMON STOCK AND CLASS B STOCK
I. Dividends, etc. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Certificate of
Incorporation, as amended from time to time, holders of Common Stock and Class B
Stock shall be entitled to receive such dividends and other distributions in
cash, stock or property of the Corporation as may be declared thereon by the
Board of Directors from time to time out of assets or funds of the Corporation
legally available therefor, provided that in the case of cash dividends, if at
any time a cash dividend is paid on the Common Stock, a cash dividend will also
be paid on the Class B Stock in an amount per share of Class B Stock equal to
90% of the amount of the cash dividends paid on each share of the Common Stock
(rounded down, if necessary, to the nearest one-hundredth of a cent), and
provided, further, that in the case of dividends or other distributions payable
in stock of the Corporation other than Preferred Stock, including distributions
pursuant to stock splits or divisions of stock of the Corporation other than
Preferred Stock, which occur
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after the initial issuance of shares of Class B Stock by the Corporation, only
shares of Common Stock shall be distributed with respect to Common Stock and
only shares of Class B Stock in an amount per share equal to the amount per
share paid with respect to the Common Stock shall be distributed with respect to
Class B Stock, and that, in the case of any combination or reclassification of
the Common Stock, the shares of Class B Stock shall also be combined or
reclassified so that the number of shares of Class B Stock outstanding
immediately following such combination or reclassification shall bear the same
relationship to the number of shares outstanding immediately prior to such
combination or reclassification as the number of shares of Common Stock
outstanding immediately following such combination or reclassification bears to
the number of shares of Common Stock outstanding immediately prior to such
combination or reclassification.
II. Voting: (a) At every meeting of the stockholders
every holder of Common Stock shall be entitled to one (1) vote in person or by
proxy for each share of Common Stock, standing in his name on the transfer books
of the Corporation and every holder of Class B Stock shall be entitled to one
(1) vote in person or by proxy for each share of Class B Stock standing in his
name on the transfer books of the Corporation, except that each holder of Class
B Stock shall be entitled to ten (10) votes per share on the election of any
directors at any stockholders meeting (i) if more than 15% of the shares of
Common Stock outstanding on the record date for such meeting are beneficially
owned by a person or group of persons acting in concert (unless such person or
group is also the beneficial owner of a majority of the shares of Class B Stock
on such record date), or (ii) if a nomination for the Board of Directors is made
by a person or group of persons acting in concert (other than the Board of
Directors), provided that such nomination is not made by one or more holders of
Class B Stock, acting in concert with each other, who beneficially own more than
15% of the shares of Class B Stock outstanding on such record date.
(b) The provisions of this Certificate of Incorporation shall
not be modified, revised, altered or amended, repealed or rescinded in whole or
in part, without the affirmative vote of the holders of a majority of the shares
of the Common Stock and of a voting majority of the shares of the Class B Stock,
each voting separately as a class.
(c) The Corporation may not effect or consummate:
(1) any merger or consolidation of the Corporation with or
into any other corporation;
(2) any sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation to or with any other person;
or
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(3) any dissolution of the Corporation,
unless and until such transaction is authorized by the vote, if any, required by
Articles EIGHTH and THIRTEENTH of this Certificate of Incorporation and by
Delaware law; and unless and until such transaction is authorized by a majority
of the voting power of the shares of Common Stock and of Class B Stock entitled
to vote, each voting separately as a class, but the foregoing shall not apply to
any merger or other transaction described in the preceding subparagraphs (1) and
(2) if the other party to the merger or other transaction is a Subsidiary of the
Corporation.
For purposes of this paragraph (c) a "Subsidiary" is any
corporation more than 50% of the voting securities of which are owned directly
or indirectly by the Corporation; and a "person" is an individual, partnership,
corporation or entity.
(d) Following the initial issuance of shares of
Class B Stock, the Corporation may not effect the issuance of any additional
shares of Class B Stock (except in connection with stock splits and stock
dividends) unless and until such issuance is authorized by the holders of a
majority of the voting power of the shares of Common Stock and of Class B Stock
entitled to vote, each voting separately as a class.
(e) Every reference in this Certificate of
Incorporation to a majority or other proportion of shares of stock shall refer
to such majority or other proportion of the votes of such shares of stock.
(f) Except as may be otherwise required by law or
by this Article FOURTH, the holders of Common Stock and Class B Stock shall vote
together as a single class, subject to any voting rights which may be granted to
holders of Preferred Stock.
III. Transfer.
(a) No person holding shares of Class B Stock of
record (hereinafter called a "Class B Holder") may transfer, and the Corporation
shall not register the transfer of, such shares of Class B Stock, as Class B
Stock, whether by sale, assignment, gift, bequest, appointment or otherwise,
except to a Permitted Transferee and any attempted transfer of shares not
permitted hereunder shall be converted into Common Stock as provided by
subsection (d) of this Section III. A Permitted Transferee shall mean, with
respect to each person from time to time shown as the record holder of shares of
Class B Stock:
(i) In the case of a Class B Holder who is a natural
person;
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(A) The spouse of such Class B Holder and any lineal ancestor
and descendant of such spouse, any lineal ancestor or descendant of such Class B
Holder's parents, including adopted children and any spouse of such lineal
descendant or ancestor and such spouse's lineal ancestors and descendants (which
ancestors and descendants, their spouses and any lineal ancestors and
descendants of such spouse, the Class B Holder, and his or her spouse are herein
collectively referred to as "Class B Holder's Family Members");
(B) The trustee of a trust (including a voting trust)
principally for the benefit of such Class B Holder, such Class B Holder's Family
Members and/or one or more of his or her other Permitted Transferees described
in each subclause of this clause (i) other than this subclause (B), provided
that such trust may also grant a general or special power of appointment to one
or more of such Class B Holder's Family members and may permit trust assets to
be used to pay taxes, legacies and other obligations of the trust or of the
estates of one or more of such Class B Holder's Family Members payable by reason
of the death of any of such Family Members;
(C) A corporation if a majority of the beneficial ownership of
outstanding capital stock of such corporation which is entitled to vote for the
election of directors is owned by, or a partnership if a majority of the
beneficial ownership of the partnership is held by, the Class B Holder or his or
her Permitted Transferees determined under this clause (i), proved that if by
reason of any change in the ownership of such stock or partnership interests,
such corporation or partnership would no longer qualify as a Permitted
Transferee, all shares of Class B Stock then held by such corporation or
partnership shall, upon the election of the Corporation given by written notice
to such corporation or partnership, without further act on anyone's part, be
converted into shares of Common Stock effective upon the date of the giving of
such notice, and stock certificates formerly representing such shares of Class B
Stock shall thereupon and thereafter be deemed to represent the like number of
shares of Common Stock; and
(D) The estate of such Class B Holder.
(ii) In the case of a Class B Holder holding the shares of
Class B Stock in question as trustee pursuant to a trust (other than a trust
described in clause (iii) below), "Permitted Transferee" means (A) any person
transferring Class B Stock to such trust and (B) any Permitted Transferee of any
such transferor determined pursuant to clause (i) above.
(iii) In the case of a Class B Holder holding the shares of
Class B Stock in question as trustee pursuant to a trust which was irrevocable
on the record date (hereinafter in this Section III called the "Record Date")
for determining the persons to whom the Class B Stock is first issued by the
Corporation, "Permitted Transferee" means (A) any person to whom or for whose
benefit principal may be distributed either
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during or at the end of the term of such trust whether by power of appointment
or otherwise and (B) any Permitted Transferee of any such person determined
pursuant to clause (i) above.
(iv) In the case of a Class B Holder which is a corporation or
partnership acquiring record and beneficial ownership of the shares of Class B
Stock in question upon its initial issuance by the Corporation, "Permitted
Transferee" means (A) any partner of such partnership, or stockholder of such
corporation, on the Record Date, (B) any person transferring such shares of
Class B Stock to such corporation or partnership, and (C) any Permitted
Transferee of any such person, partner, or stockholder referred to in subclauses
(A) and (B) of this clause (iv), determined under clause (i) above.
(v) In the case of a Class B Holder which is a corporation or
partnership (other than a corporation or partnership described in clause (iv)
above) holding record and beneficial ownership of the shares of Class B Stock in
question, "Permitted Transferee" means (A) any person transferring such shares
of Class B Stock to such corporation or partnership and (B) any Permitted
Transferee of any such transferor determined under clause (i) above.
(vi) 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, which holds record and beneficial ownership of the shares of Class B
Stock in question, "Permitted Transferee" means a Permitted Transferee of such
deceased, bankrupt or insolvent Class B Holder as determined pursuant to clause
(i), (ii), (iii), (iv) or (v) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth herein,
any Class B Holder may pledge such Holder's share of Class B 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 shall not be
transferred to or registered in the name of the pledgee and shall remain subject
to the provisions of this Section III. In the event of foreclosure or other
similar action by the pledgee, such pledged shares of Class B Stock may only be
transferred to a Permitted Transferee of the pledgor or converted into shares of
Common Stock, as the pledgee may elect.
(c) For purposes of this Section III:
(i) The relationship of any person that is derived by or
through legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Stock shall be
considered a "Class B Holder" of such shares.
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(iii) A minor for whom shares of Class B Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be considered a
Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means both
natural persons and legal entities.
(v) Without derogating from the election conferred upon the
Corporation pursuant to subclause (D) of clause (i) above, each reference to a
corporation shall include any successor corporation resulting from merger or
consolidation and each reference to a partnership shall include any successor
partnership resulting from the death or withdrawal of a partner.
(d) Any transfer of shares of Class B Stock not permitted
hereunder shall result in the conversion of the transferee's shares of Class B
Stock into shares of Common Stock, effective the date on which certificates
representing such shares are presented for transfer on the books of the
Corporation. The Corporation may, in connection with preparing a list of
stockholders entitled to vote at any meeting of stockholders, or as a condition
to the transfer or the registration of shares of Class B Stock on the
Corporation's books, require the furnishing of such affidavits or other proof as
it deems necessary to establish that any person is the beneficial owner of
shares of Class B Stock or is a Permitted Transferee.
(e) At any time when the number of outstanding shares of Class
B Stock as reflected on the stock transfer books of the Corporation falls below
5% of the aggregate number of the issued and outstanding shares of the Common
Stock and Class B Stock of the Corporation, or the Board of Directors and the
holders of a majority of the outstanding shares of Class B Stock approve the
conversion of all of the Class B Stock into Common Stock, then, immediately upon
the occurrence of either such event, the outstanding shares of Class B Stock
shall be converted into shares of Common Stock. In the event of such a
conversion, certificates formerly representing outstanding shares of Class B
Stock shall thereupon and thereafter be deemed to represent the like number of
shares of Common Stock.
(f) Shares of Class B Stock shall be registered in the names
of the beneficial owners thereof and not in "street" or "nominee" name. For this
purpose, a "beneficial owner" of any shares of Class B Stock shall mean a person
who, or an entity which, possesses the power, either singly or jointly, to
direct the voting or disposition of such shares. The Corporation shall note on
the certificates for shares of Class B Stock the restrictions on transfer and
registration of transfer imposed by this Section III.
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IV. Conversion Rights.
(a) Subject to the terms and conditions of this Section IV,
each share of Class B Stock shall be convertible at any time or from time to
time, at the option of the respective holder thereof, at the office of any
transfer agent for Class B Stock, and at such other place or places, if any, as
the Board of Directors may designate, or if the Board of Directors shall fail so
to designate, at the principal office of the Corporation (attention of the
Secretary of the Corporation), into one (1) fully paid and nonassessable share
of Common Stock, Upon conversion, the Corporation shall make no payment or
adjustment on account of dividends accrued or in arrears on Class B Stock
surrendered for conversion or on account of any dividends on the Common Stock
issuable on such conversion. Before any holder of Class B Stock shall be
entitled to convert the same into Common Stock, he shall surrender the
certificate or certificates for such Class B Stock at the office of said
transfer agent (or other place as provided above), which certificate or
certificates, if the Corporation shall so request, shall be duly endorsed to the
Corporation or in blank or accompanied by proper instruments of transfer to the
Corporation or in blank) (such endorsements or instruments of transfer to be in
form satisfactory to the Corporation), and shall give written notice to the
Corporation at said office that he elects so to convert said Class B Stock in
accordance with the terms of this Section IV, and shall state in writing therein
the name or names in which he wishes the certificates or certificates for Common
Stock to be issued. Every such notice of election to convert shall constitute a
contract between the holder of such Class B Stock and the Corporation, whereby
the holder of such Class B Stock shall be deemed to subscribe for the amount of
Common Stock which he shall be entitled to receive upon such conversion, and, in
satisfaction of such subscription, to deposit the Class B Stock to be converted
and to release the Corporation from all liability thereunder, and thereby the
Corporation shall be deemed to agree that the surrender of the certificate or
certificates therefor and the extinguishment of liability thereon shall
constitute full payment of such subscription for Common Stock to be issued upon
such conversion. The Corporation will as soon as practicable after such deposit
of a certificate or certificates for Class B Stock, accompanied by the written
notice and the statement above prescribed, issue and deliver at the office of
said transfer agent (or other place as provided above) to the person for whose
account such Class B Stock was so surrendered, or to his nominee or nominees, a
certificate or certificates for the number of full shares of Common Stock to
which he shall be entitled as aforesaid. Subject to the provisions of subsection
(c) of this Section IV, such conversion shall be deemed to have been made as of
the date of such surrender of the Class B Stock to be converted; and the person
or persons entitled to receive the Common Stock issuable upon conversion of such
Class B Stock shall be treated for all purposes as the record holder or holders
of such Common Stock on such date.
(b) The issuance of certificates for shares of Common Stock
upon conversion of shares of Class B Stock shall be made without charge for any
stamp or other similar tax in respect of such issuance. However, if any such
certificate is to be issued in a name other than that of the holder of the share
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or shares of Class B Stock converted, the person or persons requesting the
issuance thereof shall pay to the Corporation the amount of any tax which may be
payable in respect of any transfer involved in such issuance or shall establish
to the satisfaction of the Corporation that such tax has been paid.
(c) The Corporation shall not be required to convert Class B
Stock, and no surrender of Class B Stock shall be effective for that purpose,
while the stock transfer books of the Corporation are closed for any purpose;
but the surrender of Class B Stock for conversion during any period while such
books are so closed shall become effective for conversion immediately upon the
reopening of such books, as if the conversion had been made on the date such
Class B Stock was surrendered.
(d) The Corporation covenants that it will at all times
reserve and keep available, solely for the purpose of issue upon conversion of
the outstanding shares of Class B Stock, such number of shares of Common Stock
as shall be issuable upon the conversion of all such outstanding shares,
provided that nothing contained herein shall be construed to preclude the
Corporation from satisfying its obligations in respect of the conversion of the
outstanding shares of Class B Stock by delivery of shares of Common Stock which
are held in the treasury of the Corporation. The Corporation covenants that if
any shares of Common Stock, required to be reserved for purposes of conversion
hereunder, require registration with or approval of any governmental authority
under any federal or state law before such shares of Common Stock may be issued
upon conversion, the Corporation will use its best efforts to cause such shares
to be duly registered or approved, as the case may be. The Corporation will
endeavor to list the shares of Common Stock required to be delivered upon
conversion prior to such delivery upon each national securities exchange, if
any, upon which the outstanding Common Stock is listed at the time of such
delivery. The Corporation covenants that all shares of Common Stock which shall
be issued upon conversion of the shares of Class B Stock, will, upon issue, be
fully paid and nonassessable and not entitled to any preemptive rights.
V. Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation, the holders of each series of Preferred Stock
shall be entitled to receive, out of the net assets of the Corporation, an
amount for each share equal to the amount fixed and determined by the Board of
Directors in any resolution or resolutions providing for the issuance of any
particular series of Preferred Stock, plus an amount equal to all dividends
accrued and unpaid on shares of such series to the date fixed for distribution
or paid over to the holders of Common Stock. After payment in full of said
amounts to the holders of Preferred Stock of all series, the remaining assets
and funds of the Corporation shall be divided among and paid ratably to the
holders of Common Stock, and Class B Stock (considered for this purpose as one
class). If, upon such dissolution, liquidation or winding up, the assets of the
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Corporation distributable as aforesaid among the holders of Preferred Stock of
all series shall be insufficient to permit full payment to them of said
preferential amounts, then such assets shall be distributed among such holders,
first in the order of their respective preferences, and second, as to such
holders who are next entitled to such assets and who rank equally with regard to
such assets, ratably in proportion to the respective total amounts which they
shall be entitled to receive as provided in this Section V. A merger or
consolidation of the Corporation with or into any other corporation or a sale or
conveyance of all or any part of the assets of the Corporation (which shall not
in fact result in the liquidation of the Corporation and the distribution of
assets to stockholders) shall not be deemed to be a voluntary or involuntary
liquidation or dissolution or winding up of the Corporation within the meaning
of this Section V.
B. Preferred Stock.
The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this Article FOURTH, to
provide for the issuance of the preferred shares in series, and by filing a
certificate pursuant to the General Corporation Law of Delaware, to establish
the number of shares to be included in each such series, and to fix the
designations, relative rights, preferences and limitations of the shares of each
such series. The authority of the Board with respect to each series shall
include, but not be limited to, determination of the following:
(a) The number of shares constituting that series
and the distinctive designations of that series;
(b) The dividend rate on the shares of that series,
whether dividends shall be cumulative and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares of
that series;
(c) Whether that series shall have voting rights, in
addition to the voting rights provided by law and, if so, the terms of such
voting rights;
(d) Whether that series shall have conversion
privileges and, if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as the Board of
Directors shall determine;
(e) Whether or not the shares of that series shall
be redeemable and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they
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shall be redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different redemption
dates;
(f) Whether that series shall have a sinking fund
for the redemption or purchase of shares of that series and, if so, the terms
and amount of such sinking fund;
(g) The rights of the shares of that series in the
event of voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series;
(h) Any other relative rights, preferences and
limitations of that series.
Dividends on outstanding preferred shares shall be
declared and paid, or set apart for payment, before any dividends shall be
declared and paid, or set apart for payment, on the common shares with respect
to the dividend period.
Any and all such shares issued, and for which the
full consideration has been paid or delivered shall be deemed fully paid stock
and the holder of such shares shall not be liable for any further call or
assessment or any other payment thereon.
C. Authorized Shares of Capital Stock.
Except as may be Provided in the terms and conditions
fixed by the Board of Directors for any series of Preferred Stock, and in
addition to any other vote that may be required by statute, stock exchange
regulations, this Certificate of Incorporation or any amendment hereof, the
number of authorized shares of any class or classes of stock of the Corporation
may be increased or decreased by the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
R. G. Dickerson 229 South State Street
Dover, Delaware
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SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholder or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this corporation
under the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders of class or stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: For the management of the business and for the conduct
of the affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. Directors shall be divided into three classes, each class
to be determined by the directors prior to the election of a particular class.
In the event that at any time or from time to time the number of directors is
increased, the newly created directorships resulting therefrom shall be filled
by a vote of the majority of the directors in office immediately prior to such
increase, and directors so elected shall serve until the term of the class to
which they are assigned expires. Vacancies in any class of directors shall be
filled by the vote of the remaining directors, and directors so elected shall
serve until the term of such class expires. At the 1986 Annual Meeting of
Stockholders, First Class directors shall be elected to a term of one year,
Second Class directors to a term of two years, and Third Class directors to a
term of three years, and at each subsequent annual meeting, the successors to
directors whose terms shall expire that year shall be elected to a term of three
years.
2. The original By-Laws of the corporation shall be
adopted by the incorporator unless the certificate of incorporation shall name
the initial Board of Directors therein. Thereafter, the power to make, alter, or
repeal the By-Laws, and to adopt any new By-Law, except a By-Law classifying
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directors for election for staggered terms, shall be vested in the Board of
Directors.
3. Whenever the corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever the
corporation shall be authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting power under the
provisions of the certificate of incorporation shall entitle the holder thereof
to notice of, and the right to vote, at any meeting of stockholders except as
the provisions of paragraph (d) (2) of section 242 of the General Corporation
Law and of sections 251, 251, and 253 of the General Corporation Law shall
otherwise require; provided, that no share of any such class which is otherwise
denied voting power shall entitle the holder thereof to vote upon the increase
or decrease in the number of authorized shares of said class.
4. Except as otherwise provided with respect to any series of
preferred stock, any action required or permitted to be taken by the holders of
issued and outstanding stock of the Corporation may be effected solely at an
annual or special meeting of stockholders duly called and held in accordance
with law and this Certificate of Incorporation.
5. The affirmative vote of two-thirds (2/3) of the outstanding
stock entitled to vote in elections of directors (considered for this purpose as
one class) shall be required for any merger or consolidation to which the
Corporation is a party or any sale or other disposition by the Corporation of
all or substantially all of its assets.
6. The Board of Directors shall consist of such number of
persons fixed from time to time by the Board of Directors pursuant to resolution
adopted by a majority of directors then in office. Subject to the rights of
holders of any series of preferred stock, any vacancy in the Board of Directors
caused by death, resignation, removal, retirement, disqualification or any other
cause (including an increase in the number of directors) may be filled solely by
resolution adopted by the affirmative vote of a majority of the directors then
in office, whether or not such majority constitutes less than a quorum, or by a
sole remaining director. Any new directors elected to fill a vacancy on the
Board of Directors will serve for the remainder of the full term of that
director for which the vacancy occurred. No decrease in the size of the Board
shall have effect of shortening the term of any incumbent director.
7. Subject to the rights of holders of a class or series
of preferred stock to elect directors or to remove directors so elected, a duly
elected director of the Corporation may be removed from such position, with or
without cause, only by the affirmative vote of the holders of at least eighty
(80) percent in voting power of the outstanding capital stock of the Corporation
entitled to vote in the election of directors, voting as a single class. A
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special meeting of stockholders may be called by holders of shares outstanding
entitled to exercise a majority of the voting power of the Corporation in the
election of directors, solely for the purpose of removing a director or
directors. A meeting called by stockholders for the removal of a director or
directors shall be called upon the request in writing to the Chairman, President
or Secretary, sent by registered mail or delivered to the officer in person, by
a holder or holders of shares outstanding entitled to exercise a majority of the
voting power of the Corporation in the election of directors. Such officer
forthwith shall cause notice to be given to the stockholders entitled to vote
that a meeting will be held at a time, fixed by such officer, not less than 30
and not more than 60 days after the receipt of the request. If the notice is not
given with 20 days after the date of delivery, or the date of the mailing, of
the request, the person or persons calling the meeting may fix the time of
meeting and give the notice in the manner provided herein.
Nothing contained in this subdivision 7 shall be construed as limiting, fixing
or affecting the time or date when a special meeting of the stockholders called
by action of the Chairman, the President or the Board of Directors may be held.
NINTH: No contract or transaction between the corporation and
one or more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or a committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board or Committee in good faith authorizes the
contract or transaction by a vote sufficient for such purpose without counting
the vote of the interested director or directors; or
(2) The material facts as to his interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof, or the stockholders.
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(4) Common or interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
TENTH: (a) The corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
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(c) To the extent that a director, officer, employee or agent
of the corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in paragraphs (a) and (b), or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
(f) The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(g) The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article.
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ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
TWELFTH: In addition to any other vote that may be required by
statute, Stock Exchange regulations, this certificate of incorporation or any
amendment hereof, or the by-laws of the corporation, the vote of the holders of
two-thirds of all classes of stock of the Corporation entitled to vote in
elections of directors (considered for this purpose as one class) shall be
required to amend, alter, change or repeal Article EIGHTH, Subdivision 5 or this
Article TWELFTH of this certificate of incorporation.
THIRTEENTH: The following provisions shall apply in addition
to any other affirmative vote required by law or this certificate of
incorporation:
SECTION 1
CERTAIN BUSINESS COMBINATIONS
The affirmative vote of the holders of not less than
four-fifths of the outstanding shares of Voting Stock (as hereinafter defined)
held by stockholders other than the Acquiring Person (as hereinafter defined)
with which or by or on whose behalf, directly or indirectly, a Business
Combination (as hereinafter defined) is proposed, voting as a single class,
shall be required for the approval or authorization of such Business
Combination. Notwithstanding the foregoing, the four-fifths voting requirement
shall not be applicable if such Business Combination is approved by the
Corporation's Board of Directors prior to the Acquiring Person becoming such or
if the cash or fair market value of the property, securities or other
consideration to be received per share by holders of shares of each class of
Voting Stock in such Business Combination as of the date of consummation thereof
is an amount not less than the higher of (a) the Highest Per Share Price or the
Highest Equivalent Price (as these terms are hereinafter defined) paid by such
Acquiring Person in acquiring any of its holdings of Voting Stock, and (b) the
Fair Market Price (as hereinafter defined) of such class of Voting Stock
determined on the date the proposal for such Business Combination was first
publicly announced, and such consideration shall be in the same form and of the
same kind as the consideration paid by such Acquiring Person in acquiring the
shares of Voting Stock already acquired by it. If the Acquiring Person had paid
for shares of Voting Stock with varying forms of consideration, the form of
consideration to be received by the holders of Voting Stock shall be the form
used to acquire the largest number of shares of Voting Stock acquired by such
Acquiring Person.
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SECTION II
DEFINITIONS
For purposes of this Article THIRTEENTH:
1. Business Combination. The term "Business Combination" shall
mean (a) any merger or consolidation of the Corporation or a subsidiary of the
Corporation with or into an Acquiring Person, (b) any sale, lease, exchange,
transfer or other disposition, including, without limitation, a mortgage or any
other security device, in a single transaction or related series of
transactions, of all or any Substantial Part (as hereinafter defined) of the
assets either of the Corporation (including without limitation any voting
securities of a subsidiary) or of a subsidiary of the Corporation to an
Acquiring Person, (c) any merger or consolidation of an Acquiring Person with or
into the Corporation or a subsidiary of the Corporation, (d) any sale, lease,
exchange, transfer or other disposition, including without limitation a mortgage
or other security device, in a single transaction or related series of
transactions, of all or any Substantial Part of the assets of an Acquiring
Person to the Corporation or a subsidiary of the Corporation, (e) the issuance
of any securities of the Corporation or a subsidiary of the Corporation to an
Acquiring Person, (f) any recapitalization, merger or consolidation that would
have the effect of increasing the voting power of an Acquiring Person, (g) the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed, directly or indirectly, by or on behalf of an Acquiring
Person, (h) any merger or consolidation of the Corporation with a subsidiary of
the Corporation proposed by or on behalf of an Acquiring Person, unless the
surviving or consolidated corporation, as the case may be, has a provision in
its certificate of incorporation substantially identical to this Article
THIRTEENTH, (i) any agreement, contract or other arrangement providing for any
of the transactions described in this definition of Business Combination, and
(j) any other transaction with an Acquiring Person which requires the approval
of the stockholders of the Corporation under the General Corporation Law of
Delaware. A person who is an Acquiring Person as of (x) the time any definitive
agreement relating to a Business Combination is entered into, (y) the record
date for the determination of stockholders entitled to notice of and to vote on
a Business Combination, or (z) immediately prior to the consummation of a
Business Combination, shall be deemed an Acquiring Person for purposes of this
Definition.
2. Acquiring Person. The term "Acquiring Person" shall mean
and include any individual, corporation (other than the Corporation),
partnership or other person or entity which, together with its Affiliates and
Associates (as defined in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934 as in effect at December 16, 1983,
collectively, and as so in effect, the "Exchange Act"), and with any other
individual, corporation (other than the Corporation), partnership or other
person or entity with which it or they have any agreement,
24
arrangement or understanding with respect to acquiring, holding, voting or
disposing of Voting Stock, Beneficially Owns (as defined in Rule 13d-3 of the
Exchange Act) in the aggregate 5% or more of the outstanding Voting Stock of the
Corporation. A person or entity, its Affiliates and Associates and all such
other persons or entities with whom they have any such agreement, arrangement or
understanding shall be deemed a single Acquiring Person for purposes of this
Article THIRTEENTH. For purposes of this Article, the Board of Directors shall
have the power to determine, on the basis of information known to the Board, if
and when there is an Acquiring Person. Any such determination shall be
conclusive and binding for all purposes of this Article.
3. Substantial Part. The term "Substantial Part" shall mean an
amount equal to more than 10% of the fair market value of the total consolidated
assets of the Corporation and its subsidiaries taken as a whole as of the end of
its most recent fiscal year ended prior to the time the determination is being
made.
4. Rights to Acquire. Without limitation, any share of Voting
Stock of the Corporation that any Acquiring Person has the right to acquire at
any time (notwithstanding that Rule 13d-3 of the Exchange Act deems such shares
to be beneficially owned only if such right may be exercised within 60 days)
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed to be Beneficially Owned by the Acquiring
Person and to be outstanding for purposes of Paragraph 2 of this Section II.
5. Other Consideration to be Received. For the purposes of
Section I of this Article THIRTEENTH, the term "other consideration to be
received" shall include, without limitation, Common Stock, Preferred Stock or
other capital of the Corporation retained by its existing stockholders other
than the Acquiring Person with which or by or on whose behalf, directly or
indirectly, a Business Combination has been proposed or other parties to such
Business Combination in the event of a Business Combination in which the
Corporation is the surviving corporation.
6. Voting Stock. The term "Voting Stock" shall mean all of the
outstanding shares of capital stock of the Corporation entitled to vote in
elections of directors (considered for this purpose as one class), and each
reference to a percentage of shares of Voting Stock shall refer to such
percentage of the votes entitled to be cast by such shares.
7. Time of Acquisition. An Acquiring Person shall be deemed to
have acquired shares of the Voting Stock of the Corporation at the time when
such Acquiring Person became the Beneficial Owner thereof. The price paid by an
Acquiring Person for such shares held by a person or entity at the time it
became part of such Acquiring Person shall be deemed to be the higher of
25
(a) the price paid upon the acquisition thereof by such person or entity and (b)
the market price of the shares in question at the time when such person or
entity became part of such Acquiring Person.
8. Highest Per Share Price; Highest Equivalent Price. The
terms "Highest Per Share Price" and "Highest Equivalent Price" as used in this
Article THIRTEENTH shall mean the following: If there is only one class of
capital stock of the Corporation issued and outstanding, the Highest Per Share
Price shall mean the highest per share price that can be determined to have been
paid at any time by the Acquiring Person by or on whose behalf, directly or
indirectly, the Business Combination has been proposed for any share or shares
of that class of capital stock. If there is more than one class of capital stock
of the Corporation issued and outstanding, the Highest Equivalent Price shall
mean, with respect to each class and series of capital stock of the Corporation,
the highest per share price equivalent of the highest price that can be
determined to have been paid at any time by such Acquiring Person for any share
or shares of any class or series of capital stock of the Corporation. In
determining the Highest Per Share Price and Highest Equivalent Price, all
purchases by an Acquiring Person shall be taken into account regardless of
whether the shares were purchased before or after the Acquiring Person became an
Acquiring Person. Also, the Highest Per Share Price and the Highest Equivalent
Price shall include any brokerage commissions, transfer taxes and soliciting
dealers' fees paid by the Acquiring Person with respect to the shares of capital
stock of the Corporation acquired by the Acquiring Person. The Highest Per Share
Price and the Highest Equivalent Price shall be appropriately adjusted to take
into account stock dividends, subdivisions, combinations and reclassifications.
9. Fair Market Price. The term "Fair Market Price" shall mean
for any class of Voting Stock the highest closing sale price during the 30-day
period immediately preceding the date in question of a share of such class of
Voting Stock on the Composite Tape for New York Stock Exchange-listed stocks,
or, if such class of Voting Stock is not quoted on the Composite Tape, on the
New York Stock Exchange, or, if such class of Voting Stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such class of Voting Stock is
listed, or, if such class of Voting Stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of such class of
Voting Stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock.
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SECTION III
AMENDMENT
The provisions set forth in this Article THIRTEENTH may not be
amended, altered, changed or repealed in any respect unless such action is
approved by the affirmative vote of the holders of not less than four-fifths of
the outstanding shares of Voting Stock of the Corporation at a meeting of the
stockholders duly called for the consideration of such amendment, alteration,
change or repeal, provided, however, that if such action has been proposed,
directly or indirectly, on behalf of an Acquiring Person, it must also be
approved by the affirmative vote of the holders of not less than four-fifths of
the outstanding shares of Voting Stock held by the stockholders other than such
Acquiring Person.
SECTION IV
NON-EXCLUSIVE
The provisions set forth in this Article THIRTEENTH are in
addition to the provisions set forth in Article EIGHTH, subdivision 5 of this
certificate of incorporation.
FOURTEENTH: In addition to any other vote that may be required
by statute, stock exchange regulations, this Certificate of Incorporation or any
amendment hereof, the vote of the holders of four-fifths of all classes of stock
of the Corporation entitled to vote in elections of directors (considered for
this purpose as one class) shall be required to amend, alter, change or repeal
Article EIGHTH, subdivisions one, two, four, six and seven or this Article
FOURTEENTH of this Certificate of Incorporation.
FIFTEENTH: No director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omission not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction for which the director derived an improper personal benefit. The
foregoing shall not eliminate or limit the liability of a director for any act
or omission occurring prior to the date this Article becomes effective.
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Signed and attested to on
August ____, 1999
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Charles P. Johnson
Chairman of the Board
Attest:
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Howard S. Modlin, Secretary