RESTATED
CERTIFICATE OF INCORPORATION
of
GENERAL MILLS, INC., AS AMENDED
ARTICLE I
The name of this Corporation is General Mills, Inc.
ARTICLE II
The address of its registered office in the State of Delaware is
1209 Orange Street in the City of Wilmington, County of New Castle, and the
name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose of this Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
The total number of shares of capital stock which may be issued by
the Corporation is one billion five million (1,005,000,000), of which one
billion (1,000,000,000) shares ($.10 par value) shall be Common Stock and
five million (5,000,000) shares, without par value, shall be Cumulative
Preference Stock.
(1) PROVISIONS RELATING TO COMMON STOCK
(a) Each share of Common Stock shall, subject to paragraph (f) of
Section (2), have one vote and, except as provided by resolution or
resolutions adopted by the Board of Directors providing for the issue of
any series of Cumulative Preference Stock, the exclusive voting power for
all purposes shall be vested in the holders of the Common Stock.
(b) No holder of Common Stock as such shall have any preemptive
right to subscribe to stock, obligations, warrants, rights to subscribe to
stock or other securities of the Corporation of any class, whether now or
hereafter authorized.
(c) Subject to the provisions of law and preference of the
Cumulative Preference Stock, dividends may be paid on the Common Stock of
the Corporation at such time and in such amounts as the Board of Directors
may deem advisable.
(d) In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the holders of Common
Stock shall be entitled, after payment or provision for payment of the
debts and other liabilities of the Corporation and the amounts to which
holders of Cumulative Preference Stock shall be entitled, to the remaining
net assets of the Corporation.
(2) PROVISIONS RELATING TO CUMULATIVE PREFERENCE STOCK
(a) The Cumulative Preference Stock may be issued from time to time
in one or more series, each of such series to have such designations,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, as are stated and
expressed herein and in the resolution or resolutions providing for the
issue of such series adopted by the Board of Directors as hereinafter
provided.
(b) Authority is hereby expressly granted to the Board of
Directors, subject to the provisions of this Article IV, to authorize the
issue of one or more series of Cumulative Preference Stock and with respect
to each series to fix by resolution or resolutions providing for the issue
of such series:
(i) The number of shares to constitute such series and the
distinctive designation thereof;
(ii) The dividend rate or rates to which such shares shall be
entitled and the restrictions, limitations and conditions upon the payment
of such dividends, the date or dates from which dividends shall accumulate
and the quarterly dates on which dividends, if declared, shall be payable;
(iii) Whether or not the shares of such series shall be
redeemable, the limitations and restrictions with respect to such
redemptions, the manner of selecting shares of such series for redemption
if less than all shares are to be redeemed, and the amount, if any, in
addition to any accrued dividends thereon which the holder of shares of
such series shall be entitled to receive upon the redemption thereof, which
amount may vary at different redemption dates and may be different with
respect to shares redeemed through the operation of any retirement or
sinking fund and with respect to shares otherwise redeemed;
(iv) The amount in addition to any accrued dividends thereon
which the holders of shares of such series shall be entitled to receive
upon the voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, which amount may vary depending on whether such
liquidation, dissolution or winding up is voluntary or involuntary and, if
voluntary, may vary at different dates (the amount so payable upon such
involuntary liquidation, dissolution or winding up, exclusive of accrued
dividends, being hereinafter sometimes called the "involuntary liquidation
value");
(v) Whether or not the shares of such series shall be subject
to the operation of a purchase, retirement or sinking fund, and, if so,
whether such retirement or sinking fund shall be cumulative or
non-cumulative, the extent to and the manner in which such fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or to other corporate purposes and the terms and provisions
relative to the operation thereof;
(vi) Whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other class
or classes, or of any other series of the same class, and if so convertible
or exchangeable, the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same;
(vii) The voting powers, if any, of such series in addition to
the voting powers provided in paragraph (f) of this Section (2); and
(viii) Any other preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof as shall not be inconsistent with this Section (2).
(c) All shares of any one series of Cumulative Preference Stock
shall be identical with each other in all respects, except that shares of
any one series issued at different times may differ as to the dates from
which dividends thereon shall be cumulative; and all series shall rank
equally and be identical in all respects, except as permitted by the
foregoing provisions of paragraph (b) of this Section (2).
(d) Before any dividends on any class or classes of stock of the
Corporation ranking junior to the Cumulative Preference Stock (other than
dividends payable in shares of any class or classes of stock of the
Corporation ranking junior to the Cumulative Preference Stock) shall be
declared or paid or set apart for payment, the holders of shares of
Cumulative Preference Stock of each series shall be entitled to such cash
dividends, but only when and as declared by the Board of Directors out of
funds legally available therefor, as they may be entitled to in accordance
with the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series, payable quarterly on such dates as
may be fixed in such resolution or resolutions in each year. Such
dividends shall be cumulative from the date or dates fixed in the
resolution or resolutions adopted by the Board of Directors providing for
the issue of such series. Dividends in full shall not be declared or paid
or set apart for payment on the Cumulative Preference Stock of any one
series for any dividend period unless dividends in full have been declared
or paid or set apart for payment on the Cumulative Preference Stock of all
series for all dividend periods terminating on the same or any earlier
date. When the dividends are not paid in full on all series of the
Cumulative Preference Stock, the shares of all series shall share ratably
in the payment of dividends, including accumulations, if any, in accordance
with the sums which would be payable on said shares if all dividends were
declared and paid in full. A "dividend period" is the period between any
two consecutive dividend payment dates (or, when shares are originally
issued, the period from the date from which dividends are cumulative to the
first dividend payment date) as fixed for a particular series. Accruals of
dividends shall not bear interest.
(e) In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation shall be made to or set apart
for the holders of shares of any class or classes of stock of the
Corporation ranking junior to the Cumulative Preference Stock, the holders
of the shares of each series of the Cumulative Preference Stock shall be
entitled to receive payment of the amount per share fixed in the resolution
or resolutions adopted by the Board of Directors providing for the issuance
of the shares of such series, plus an amount equal to all dividends accrued
thereon to the date of final distribution to such holders; but they shall
be entitled to no further payment. If, upon any liquidation, dissolution
or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of the shares of the
Cumulative Preference Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds thereof,
shall be distributed among such holders ratably in accordance with the
respective amounts which would be payable on such shares if all amounts
payable thereon were paid in full. For the purposes of this paragraph (e),
the sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Corporation or a consolidation or merger of the
Corporation with one or more corporations shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary.
(f) So long as any of the Cumulative Preference Stock is
outstanding the Corporation
(i) will not declare or pay, or set apart for payment, any
dividends (other than dividends payable in shares of any class or classes
of stock of the Corporation ranking junior to the Cumulative Preference
Stock), or make any distribution, on any class or classes of stock of the
Corporation ranking junior to the Cumulative Preference Stock, and will not
redeem, purchase or otherwise acquire, directly or indirectly, whether
voluntarily, for a sinking fund, or otherwise, any shares of any class or
classes of stock of the Corporation ranking junior to the Cumulative
Preference Stock, if at the time of making such declaration, payment,
setting apart, distribution, redemption, purchase or acquisition the
Corporation shall be in default with respect to any dividend payable on or
any obligation to retire shares of Cumulative Preference Stock, provided
that notwithstanding the foregoing the Corporation may at any time redeem,
purchase or otherwise acquire shares of stock of any such junior class in
exchange for, or out of the net cash proceeds from the concurrent sale of,
other shares of stock of any such junior class;
(ii) will not, without the affirmative vote or consent of the
holders of at least 66-2/3% of all the Cumulative Preference Stock at the
time outstanding, given in person or by proxy, either in writing or by
resolution adopted at a meeting (which may be an annual meeting) called for
the purpose, at which the holders of the Cumulative Preference Stock,
regardless of series, shall vote separately as a class, amend, alter or
repeal (by any means, including, without limitation, merger or
consolidation) any of the provisions of this Section (2) so as adversely to
affect the preferences, rights or powers of the Cumulative Preference
Stock; and
(iii) will not, without the affirmative vote or consent of the
holders of at least 66-2/3% of any adversely affected series of the
Cumulative Preference Stock at the time outstanding, given in person or by
proxy, either in writing or by resolution adopted at a meeting (which may
be an annual meeting) called for the purpose (the holders of such series of
the Cumulative Preference Stock consenting or voting, as the case may be,
separately as a class), amend, alter or repeal (by any means, including,
without limitation, merger or consolidation) any of the provisions herein
or in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series so as adversely to affect the
preferences, rights or powers of the Cumulative Preference Stock of such
series; provided, however, that any vote or consent required by
subparagraph (ii) above may be given or made effective by the filing of an
appropriate amendment of the Corporation's Restated Certificate of
Incorporation without obtaining the vote or consent of the holders of the
Common Stock of the Corporation, the right to give such vote or consent
being expressly waived by all holders of such Common Stock unless the
action to be taken would adversely affect the preferences, rights or powers
of the Common Stock; and provided further that any vote or consent required
by subparagraph (iii) above may be given and made effective by the filing
of an appropriate amendment of the Corporation's Restated Certificate of
Incorporation without obtaining the vote or consent of the holders of any
other series of the Cumulative Preference Stock or of the holders of the
Common Stock of the Corporation, the right to give such vote or consent
being expressly waived by all holders of such other series of Cumulative
Preference Stock and Common Stock unless the action to be taken would
adversely affect the preferences, rights or powers of such other series of
Cumulative Preference Stock or Common Stock, as the case may be.
(g) If in any case the amounts payable with respect to any
obligations to retire shares of the Cumulative Preference Stock are not
paid in full in the case of all series with respect to which such
obligations exist, the number of shares of each of such series to be
retired pursuant to any such obligations shall be in proportion to the
respective amounts which would be payable on account of such obligations if
all amounts payable in respect of all such obligations if all amounts
payable in respect of all such series were discharged in full.
(h) The term "class or classes of stock of the Corporation ranking
junior to the Cumulative Preference Stock" shall mean the Common Stock
referred to in Section (1) of this Article IV and any other class or
classes of stock of the Corporation hereinafter authorized which shall rank
junior to the Cumulative Preference Stock as to dividends or upon
liquidation.
(i) Aggregate involuntary liquidation value of all shares of
Cumulative Preference Stock outstanding at any time shall never exceed
$300,000,000.
(j) No holder of Cumulative Preference Stock as such shall have any
preemptive right to subscribe to stock, obligations, warrants, rights to
subscribe to stock or other securities of the Corporation of any class,
whether now or hereafter authorized.
(k) For the purposes of Section (2) of this Article IV or of any
resolution of the Board of Directors providing for the issue of any series
of Cumulative Preference Stock or of any certificate filed with the
Secretary of State of the State of Delaware pursuant to any such resolution
(unless otherwise provided in any such resolution or certificate);
(i) The term "outstanding" when used in reference to shares
of stock shall mean issued shares, excluding shares held by the Corporation
and shares called for redemption, funds for the redemption of which shall
have been set aside or deposited in trust:
(ii) The amount of dividends "accrued" on any share of
Cumulative Preference Stock as at any quarterly dividend date shall be
deemed to be the amount of any unpaid dividends accumulated thereon to and
including such quarterly dividend date, whether or not earned or declared,
and the amount of dividends "accrued" on any share of Cumulative Preference
Stock as at any date other than a quarterly dividend date shall be
calculated as the amount of any unpaid dividends accumulated thereon to and
including the last preceding quarterly dividend date, whether or not earned
or declared, plus an amount calculated on the basis of the annual dividend
rate fixed for the shares of such series for the period after such last
preceding quarterly dividend date to and including the date as of which the
calculation is made, based on a 360 day year of twelve 30 day months.
(3) SERIES A PARTICIPATING CUMULATIVE PREFERENCE STOCK
The Board of Directors, pursuant to the authority expressly vested in it by
this Article IV, and pursuant to the provisions of the General Corporation
Law of the State of Delaware, has by resolution adopted February 24, 1986
(which resolution was set forth in a Certificate of Designation,
Preferences and Rights of Series A Participating Cumulative Preference
Stock which was filed with the Secretary of State of the State of Delaware
on May 20, 1986), fixed the designations, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations or restrictions thereof of a series of Cumulative Preference
Stock, as follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A Participating Cumulative Preference Stock,"
without par value, and the number of shares constituting such series shall
be 700,000.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series A Participating Cumulative
Preference Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the fifteenth day of March, June,
September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Participating Cumulative Preference Stock,
in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $10.00 or (b) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distribution other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $.10 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Participating Cumulative
Preference Stock. In the event the Corporation shall at any time after
February 24, 1986 (the "Rights Declaration Date") (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Participating Cumulative Preference Stock
were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating Cumulative Preference Stock as provided in paragraph
(A) above immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10.00 per share on the Series A Participating
Cumulative Preference Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Participating Cumulative Preference Stock
from the Quarterly Dividend Payment Date next preceding the date of issue
of such shares of Series A Participating Cumulative Preference Stock,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series
A Participating Cumulative Preference Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Participating
Cumulative Preference Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Participating Cumulative
Preference Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 45 days prior to
the date fixed for the payment thereof.
Section 3. Voting Rights. In addition to the voting rights set
forth in Article IV of the Restated Certificate of Incorporation or
otherwise required by law, the holders of shares of Series A Participating
Cumulative Preference Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Participating Cumulative Preference Stock shall
entitle the holder thereof to 100 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the Corporation shall
at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the number of votes
per share to which holders of shares of Series A Participating Cumulative
Preference Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Participating Cumulative Preference Stock and the
holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Participating
Cumulative Preference Stock shall be in arrears in an amount equal to six
(6) quarterly dividends thereon, the occurrence of such contingency shall
mark the beginning of a period (herein called a "default period") which
shall extend until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly dividend
period on all shares of Series A Participating Cumulative Preference Stock
then outstanding shall have been declared and paid or set apart for
payment. During each default period, all holders of Cumulative Preference
Stock (including holders of Series A Participating Cumulative Preference
Stock) with dividends in arrears in an amount equal to six (6) quarterly
dividends thereon, voting as a class, irrespective of series, shall have
the right to elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series A Participating Cumulative Preference Stock may be
exercised initially at a special meeting called pursuant to subparagraph
(iii) of this Section 3(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that neither such
voting right nor the right of the holders of any other series of Cumulative
Preference Stock, if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of ten percent
(10%) in number of shares of Cumulative Preference Stock outstanding shall
be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Cumulative
Preference Stock of such voting right. At any meeting at which the holders
of Cumulative Preference Stock shall exercise such voting right initially
during the existing default period, they shall have the right, voting as a
class, to elect Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if such right is
exercised at an annual meeting, to elect two (2) Directors. If the number
which may be so elected at any special meeting does not amount to the
required number, the holders of the Cumulative Preference Stock shall have
the right to make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number. After the
holders of the Cumulative Preference Stock shall have exercised their right
to elect Directors in any default period and during the continuance of such
period, the number of Directors shall not be increased or decreased except
by vote of the holders of Cumulative Preference Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or pari
passu with the Series A Participating Cumulative Preference Stock.
(iii) Unless the holders of Cumulative Preference Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Cumulative Preference Stock outstanding,
irrespective of series, may request, the calling of a special meeting of
the holders of Cumulative Preference Stock, which meeting shall thereupon
be called by the President, a Vice President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which
holders of Cumulative Preference Stock are entitled to vote pursuant to
this paragraph (C)(iii) shall be given to each holder of record of
Cumulative Preference Stock by mailing a copy of such notice to the holder
at the holder's last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or in default
of the calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Cumulative Preference Stock outstanding.
Notwithstanding the provisions of this paragraph (C)(iii), no such special
meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to
be entitled to elect the whole number of Directors until the holders of
Cumulative Preference Stock shall have exercised their right to elect two
(2) Directors voting as a class, after the exercise of which right (x) the
Directors so elected by the holders of Cumulative Preference Stock shall
continue in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any vacancy
in the Board of Directors may (except as provided in paragraph (C)(ii) of
this Section 3) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill vacancies
as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Cumulative Preference Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders
of Cumulative Preference Stock as a class shall terminate, and (z) the
number of Directors shall be such number as may be provided for in the
certificate of incorporation or by-laws irrespective of any increase made
pursuant to the provisions of paragraph (C)(ii) of this Section 3 (such
number being subject, however, to change thereafter in any manner provided
by law or in the certificate of incorporation or by-laws). Any vacancies
in the Board of Directors effected by the provisions of clauses (y) and (z)
in the preceding sentence may be filled by a majority of the remaining
Directors.
(D) Except as set forth herein, holders of Series A Participating
Cumulative Preference Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Reacquired Shares. Any shares of Series A Participating
Cumulative Preference Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Cumulative Preference
Stock and may be reissued as part of a new series of Cumulative Preference
Stock to be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth herein.
Section 5. Liquidation, Dissolution or Winding Up.
(A) Upon any voluntary liquidation, dissolution or winding up of
the Corporation, no distribution shall be made to the holders of shares of
stock ranking (either as to dividends or upon liquidation, dissolution or
winding up) junior to the Series A Participating Cumulative Preference
Stock unless, prior thereto, the holders of shares of Series A
Participating Cumulative Preference Stock shall have received $100 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions
shall be made to the holders of shares of Series A Participating Cumulative
Preference Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such
number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series A Participating
Cumulative Preference Stock and Common Stock, respectively, holders of
Series A Participating Cumulative Preference Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to
1 with respect to such Cumulative Preference Stock and Common Stock, on a
per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preference of all other series of Cumulative Preference
Stock, if any, which rank on a parity with the Series A Participating
Cumulative Preference Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to
their respective liquidation preferences. In the event, however, that
there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably
to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in each such case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(D) Notwithstanding anything contained herein to the contrary, and
so long as Paragraph (2)(f)(i) of the Restated Certificate of Incorporation
shall so require, the aggregate involuntary liquidation value of all shares
of Cumulative Preference Stock outstanding at any time shall not exceed
$300,000,000 and the aggregate involuntary liquidation value of all shares
of Series A Participating Cumulative Preference Stock outstanding at any
time shall not exceed an amount equal to (i) $300,000,000, minus (ii) the
aggregate involuntary liquidation value of all shares of any other series
of Cumulative Preference Stock then outstanding. The aggregate involuntary
liquidation value of the Series A Participating Cumulative Preference Stock
otherwise payable shall be reduced, if necessary, to comply with the
preceding sentence.
Section 6. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged or changed
into other stock or securities, cash and/or any other property, then in any
such case the shares of Series A Participating Cumulative Preference Stock
shall at the same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set forth) equal
to 100 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Participating Cumulative Preference Stock
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. No Redemption. The shares of Series A Participating
Cumulative Preference Stock shall not be redeemable.
Section 8. Amendment. The Restated Certificate of Incorporation of
the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Participating Cumulative Preference Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Participating Cumulative Preference
Stock, voting separately as a class.
Section 9. Fractional Shares. Series A Participating Cumulative
Preference Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holders of fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Participating
Cumulative Preference Stock.
(4) PROVISIONS RELATING TO ALL CLASSES OF STOCK
The shares of Cumulative Preference Stock and Common Stock may be
issued by the Corporation from time to time for such consideration (not
less than the par value thereof in the case of Common Stock) as may be
fixed from time to time by the Board of Directors. Any and all shares
without nominal or par value for which the consideration so fixed shall
have been paid or delivered shall be deemed fully paid stock and shall not
be liable for any further call or assessment thereon; and the holders of
such shares shall not be liable for any further payments in respect of such
shares.
ARTICLE V
(1) For purposes of this Article V:
(a) "Affiliate" and "beneficial owner" are used herein as
defined in Rule 12b-2 and Rule 13d-3, respectively, under the Securities
Exchange Act of 1934 as in effect on the date of adoption of this Article V
by the stockholders of the Corporation ("1934 Act"). The term "Affiliate"
as used herein shall exclude the Corporation, but shall include the
definition of "Associate" as contained in said Rule 12b-2.
(b) An "Interested Stockholder" is a Person other than the
Corporation who is (i) the beneficial owner of 10% or more of the stock of
the Corporation entitled to vote for the election of directors ("Voting
Stock"), or (ii) an Affiliate of the Corporation and (A) at any time within
a two-year period prior to the record date to vote on a Business
Combination was the beneficial owner of 10% or more of the Voting Stock, or
(B) at the completion of the Business Combination will be the beneficial
owner of 10% or more of the Voting Stock.
(c) A "Person" is a natural person or a legal entity of any
kind, together with any Affiliate of such person or entity, or any person
or entity with whom such person, entity or an Affiliate has any agreement
or understanding relating to acquiring, voting, or holding Voting Stock.
(d) A "Disinterested Director" is a member of the Board of
Directors of the Corporation (other than the Interested Stockholder) who
was a director prior to the time the Interested Stockholder became an
Interested Stockholder, or any director who was recommended for election by
the Disinterested Directors. Any action to be taken by the Disinterested
Directors shall require the affirmative vote of at least two-thirds of the
Disinterested Directors.
(e) A "Business Combination" is (i) a merger or consolidation
of the Corporation or any of its subsidiaries with an Interested
Stockholder; (ii) the sale, lease, exchange, pledge, transfer or other
disposition (A) by the Corporation or any of its subsidiaries of all or a
Substantial Part of the Corporation's Assets to an Interested Stockholder,
or (B) by an Interested Stockholder of any of its assets, except in the
ordinary course of business, to the Corporation or any of its subsidiaries;
(iii) the issuance of stock or other securities of the Corporation or any
of its subsidiaries to an Interested Stockholder, other than on a pro rata
basis to all holders of Voting Stock of the same class held by the
Interested Stockholder pursuant to a stock split, stock dividend or
distribution of warrants or rights; (iv) the adoption of any plan or
proposal for the liquidation or dissolution of the Corporation proposed by
or on behalf of an Interested Stockholder; (v) any reclassification of
securities, recapitalization, merger or consolidation or other transaction
which has the effect, directly or indirectly, of increasing the
proportionate share of any Voting Stock beneficially owned by an Interested
Stockholder; or (vi) any agreement, contract or other arrangement providing
for any of the foregoing transactions.
(f) A "Substantial Part of the Corporation's Assets" shall
mean assets of the Corporation or any of its subsidiaries in an amount
equal to 50% or more of the fair market value, as determined by the
Disinterested Directors, 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 made.
(2) The affirmative vote of not less than 51% of the Voting Stock,
excluding the Voting Stock of an Interested Stockholder who is a party to
the Business Combination, shall be required for the adoption or
authorization of a Business Combination, unless the Disinterested Directors
determine that:
(a) The Interested Stockholder is the beneficial owner of not
less than 80% of the Voting Stock and has declared its intention to vote in
favor of or approve such Business Combination; or
(b) (i) The fair market value of the consideration per share
to be received or retained by the holders of each class or series of stock
of the Corporation in a Business Combination is equal to or greater than
the consideration per share (including brokerage commissions and soliciting
dealer's fees) paid by such Interested Stockholder in acquiring the largest
number of shares of such class of stock previously acquired in any one
transaction or series of related transactions, whether before or after the
Interested Stockholder became an Interested Stockholder; and (ii) the
Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance provided by the
Corporation, whether in anticipation of or in connection with such Business
Combination or otherwise.
(3) In the event any vote of holders of Voting Stock is required
for the adoption or approval of any Business Combination, a proxy or
information statement describing the Business Combination and complying
with the requirements of the 1934 Act shall be mailed at a date determined
by the Disinterested Directors to all stockholders of the Corporation
whether or not such statement is required under the 1934 Act. The
statement shall contain any recommendations as to the advisability of the
Business Combination which the Disinterested Directors, or any of them, may
choose to state and, if deemed advisable by the Disinterested Directors, an
opinion of an investment banking firm as to the fairness of the terms of
such Business Combination. Such firm shall be selected by the
Disinterested Directors and paid a fee for its services by the Corporation
as approved by the Disinterested Directors.
ARTICLE VI
The following provisions are inserted for the regulation and conduct
of the affairs of the Corporation, but it is expressly provided that the
same are intended to be and shall be construed to be in furtherance and not
in limitation or exclusion of the powers conferred by law:
(1) Subject always to such by-laws as may be adopted from time to time
by the stockholders, the Board of Directors is expressly authorized to
adopt, alter, amend and repeal the by-laws of this Corporation, but any
by-law adopted by the Board of Directors may be altered, amended or
repealed by the stockholders.
(2) The business of this Corporation shall be managed by its Board of
Directors. Directors need not be stockholders. The by-laws may prescribe
the number of directors, not less than three; may provide for the increase
or reduction thereof but not less than three; and may prescribe the number
necessary to constitute a quorum, which number may be less than a majority
of the whole Board of Directors, but not less than the number required by
law. No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing, a director shall be
liable to the extent provided by applicable law (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) pursuant to Section 174 of the
Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal
of these provisions shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment.
ARTICLE VII
(a) Any action by stockholders of the Corporation shall be taken at
a meeting of stockholders and no action may be taken by written consent of
stockholders entitled to vote upon such action except as provided in
Article IV, Section (2)(f)(ii) and (iii) hereof.
(b) No amendment to the Certificate of Incorporation shall amend,
alter, change or repeal any of the provisions of Article V hereof or of
this Article VII unless such amendment shall receive the affirmative vote
of not less than 51% of the Voting Stock, excluding the Voting Stock of any
Interested Stockholder, as defined in Article V.