EXHIBIT 3(A)
RESTATED CERTIFICATE OF INCORPORATION
of
AQUARION COMPANY
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Pursuant to Section 245 of the
General Corporation Law of the State of Delaware
AQUARION COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
hereby certifies as follows:
1. The present name of the corporation is AQUARION COMPANY (the
"Corporation"). The Corporation was originally incorporated under the
name THE HYDRAULIC COMPANY, and the date of filing of the original
Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware was October 17, 1968.
2. The provisions of the Certificate of Incorporation of the
Corporation are hereby restated and integrated into the single
instrument that is hereinafter set forth, and that is entitled
"Restated Certificate of Incorporation of Aquarion Company."
3. The restatement of the Certificate of Incorporation herein
certified has been duly adopted and approved by the Board of Directors
without a vote of the stockholders in accordance with the provisions
of Section 245 of the Delaware General Corporation Law.
4. The Restated Certificate of Incorporation of Aquarion
Company only restates and integrates and does not further amend the
provisions of the Corporation's Certificate of Incorporation as
heretofore amended or supplemented, and there is no discrepancy
between those provisions and the provisions of the Restated
Certificate of Incorporation of Aquarion Company.
RESTATED CERTIFICATE OF INCORPORATION
of
AQUARION COMPANY
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Article 1. The name of the Corporation is AQUARION COMPANY.
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Article 2. The address of the Corporation s registered office
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in the State of Delaware is 229 South State Street, City of Dover,
County of Kent. The name of the Corporation s registered agent at
such address is The Prentice-Hall Corporation System, Inc.
Article 3. The nature of the business and the purposes to be
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conducted and promoted by the Corporation are to engage in any lawful
act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
Article 4. The amount of the total authorized capital stock
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of Corporation shall be 2,500,000 shares of preferred stock, no par
value, provided that the Corporation shall not issue shares of such
Preferred Stock if such issue would increase the aggregate stated
value of the Corporation s issued and outstanding Preferred Stock to
an amount in excess of 25,000,000 and 16,000,000 shares of Common
Stock, no par value. Holders of Common Stock shall have no pre-
emptive rights to subscribe to any future issues of shares of Common
Stock. The Board of Directors shall be empowered to issue and dispose
of both the Preferred Stock and the Common Stock from time to time
with such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations and
restrictions thereof as the Board may provide for in the resolution or
resolutions providing for the issue of such stock adopted by the Board
of Directors.
Series B Junior Participating Preferred Stock:
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Section a. Designation and Amount. The shares of such series
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shall be designated as "Series B Junior Participating Preferred Stock"
(the "Series B Preferred Stock") and the number of shares constituting
the Series B Preferred Stock shall be 100,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series
B Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Company
convertible into Series B Preferred Stock. Shares of Series B
Preferred Stock shall have a stated capital of $10.00 per share, which
for purposes of Article 4 of the Certificate of Incorporation shall
constitute the "stated value" of such shares.
Section b. Dividends and Distributions.
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(1) Subject to the rights of the holders of any shares of any
series of Preferred Stock of the Company (the "Preferred Stock") (or
any similar stock) ranking prior and superior to the Series B
Preferred Stock with respect to dividends, the holders of shares of
Series B Preferred Stock, in preference to the holders of Common
Stock, no par value ($1 per share stated value) of the Company (the
"Common Stock") and of any other stock of the Company ranking junior
to the Series B Preferred Stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the
last day of January, April, July, and October in each year (each such
date being referred to herein as a "Dividend Payment Date"),
commencing on the first Dividend Payment Date after the first issuance
of a share or fraction of a share of Series B Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $1 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 distributions other than a dividend
payable in shares of Common Stock, declared on the Common Stock since
the immediately preceding Dividend Payment Date or, with respect to
the first Dividend Payment Date, since the first issuance of any share
or fraction of a share of Series B Preferred Stock. In the event the
Company shall at any time after June 25, 1996 declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of Series B Preferred 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.
(2) The Company shall declare a dividend or distribution on the
Series B Preferred Stock as provided in paragraph (A) of this Section
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
Dividend Payment Date and the next subsequent Dividend Payment Date, a
dividend of $1 per share on the Series B Preferred Stock shall
nevertheless be payable, when, as and if declared, on such subsequent
Dividend Payment Date.
(3) Dividends shall begin to accrue and be cumulative, whether
or not earned or declared, on outstanding shares of Series B Preferred
Stock from the Dividend Payment Date next preceding the date of issue
of such shares, unless the date of issue of such shares is prior to
the record date for the first 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 Dividend
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Payment Date or is a date after the record date for the determination of
holders of shares of Series B Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from
such Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series B Preferred
Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on
a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series B Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section c. Voting Rights. The holders of shares of Series B
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Preferred Stock shall have the following voting rights:
(1) Subject to the provision for adjustment hereinafter set
forth and except as otherwise provided in the Certificate of
Incorporation or required by law, each share of Series B Preferred
Stock shall entitle the holder thereof to 100 votes on all matters
upon which the holders of the Common Stock of the Company are entitled
to vote. In the event the Company shall at any time after June 25,
1996 declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series B Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(2) Except as otherwise provided herein, in the Certificate
of Incorporation or in any other Certificate of Designations creating
a series of Preferred Stock or any similar stock, and except as
otherwise required by law, the holders of shares of Series B Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Company having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Company.
(3) Except as set forth herein, or as otherwise provided by
law, holders of Series B Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section d. Certain Restrictions.
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(1) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not earned or declared, on
shares of Series B Preferred Stock outstanding shall have been paid in
full, the Company shall not:
(a) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (as to dividends)
to the Series B Preferred Stock;
(b) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (as to
dividends) with the Series B Preferred Stock, except dividends paid
ratably on the Series B Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(c) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Company ranking junior (as
to dividends and upon dissolution, liquidation or winding up) to the
Series B Preferred Stock or rights, warrants or options to acquire
such junior stock;
(d) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock, or any shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred Stock, except
in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(2) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any shares
of stock of the Company unless the Company could, under paragraph (A)
of this Section d, purchase or otherwise acquire such shares at such
time and in such manner.
Section e. Reacquired Shares. Any shares of Series B Preferred
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Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their retirement
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to any
conditions and restrictions on issuance set forth herein.
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Section f. Liquidation, Dissolution or Winding Up. Upon any
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liquidation, dissolution or winding up of the Company, no distribution
shall be made (A) to the holders of the Common Stock or of shares of
any other stock of the Company ranking junior, upon liquidation,
dissolution or winding up, to the Series B Preferred Stock unless,
prior thereto, the holders of shares of Series B Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not earned or
declared, to the date of such payment, provided that the holders of
shares of Series B Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (B) to
the holders of shares of stock ranking on a parity upon liquidation,
dissolution or winding up with the Series B Preferred Stock, except
distributions made ratably on the Series B Preferred Stock and all
such parity stock in pro-portion to the total amounts to which the
holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event, however, that there are not
sufficient assets available to permit payment in full of the Series B
liquidation preference and the liquidation preferences of all other
classes and series of stock of the Company, if any, that rank on a
parity with the Series B Preferred Stock in respect thereof, then the
assets available for such distribution shall be distributed ratably to
the holders of the Series B Preferred Stock and the holders of such
parity shares in the proportion to their respective liquidation
preferences. In the event the Company shall at any time after June 25,
1996 declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of
shares of Series B Preferred Stock were entitled immediately prior to
such event under the proviso in clause (A) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section g. Consolidation, Merger, etc. In case the Company
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shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are converted into,
exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case each share of Series B
Preferred Stock shall at the same time be similarly converted into,
exchanged for or changed into an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each
share of Common Stock is converted, exchanged or converted. In the
event the Company shall at any time after June 25, 1996 declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares
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of Common Stock, then in each such case the amount set forth in the preceding
sentence with respect to the conversion, exchange or change of shares of
Series B Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section h. No Redemption. The shares of Series B Preferred Stock
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shall not be redeemable from any holder.
Section i. Rank. The Series B Preferred Stock shall rank, with
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respect to the payment of dividends and the distribution of assets
upon liquidation dissolution or winding up of the Company, junior to
all other series of Preferred Stock and senior to the Common Stock.
Section j. Amendment. If any proposed amendment to the
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Certificate of Incorporation (including this Certificate of
Designations) would alter, change or repeal any of the preferences,
powers or special rights given to the Series B Preferred Stock so as
to affect the Series B Preferred Stock adversely, then the holders of
the Series B Preferred Stock shall be entitled to vote separately as a
class upon such amendment, and the affirmative vote of two-thirds of
the outstanding shares of the Series B Preferred Stock, voting
separately as a class, shall be necessary for the adoption thereof, in
addition to such other vote as may be required by the General
Corporation Law of the State of Delaware.
Section k. Fractional Shares. Series B Preferred Stock may be
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issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series B Preferred
Stock.
Article 5. The vote of the stockholders of the Corporation
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required to approve any Business Combination shall be as set forth in
this Article 5. The term "Business Combination" shall have the
meaning ascribed to it in Paragraph 1.(B) of this Article. Each other
capitalized term shall have the meaning ascribed to it in Paragraph 3
of this Article.
1. (A) In addition to any affirmative vote required by law or
this Restated Certificate of Incorporation and except as otherwise
expressly provided in Paragraph 2 of this Article 5:
(1) any merger or consolidation of the Corporation or
any Subsidiary with (i) any Interested Stockholder or (ii) any other
Person (whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate of an
Interested Stockholder; or
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(2) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Stockholder or any Affiliate
of any Interested Stockholder of assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value of $5,000,000 or
more; or
(3) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $5,000,000 or more, other
than the issuance of securities upon the conversion of convertible
securities of the Corporation or any Subsidiary which were not
acquired by such Interested Stockholder (or such Affiliate) from the
Corporation or a Subsidiary; or
(4) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf
of an Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(5) any transaction involving the Corporation or any
Subsidiary (whether or not with or into or otherwise involving an
Interested Stockholder), and including, without limitation, any
reclassification of securities (including any reverse stock split), or
recapitalization or reorganization of the Corporation, or any merger
or consolidation of the Corporation with any of its Subsidiaries or
any self tender offer for or repurchase of securities of the
Corporation by the Corporation or any Subsidiary or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder), which in any such case has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity securities or securities
convertible into equity securities of the Corporation or any
Subsidiary which is directly or indirectly beneficially owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least 80
percent of the combined voting power of the then outstanding shares of
the Voting Stock, in each case voting together as a single class (it
being understood that for purposes of this Article 5, each share of
the Voting Stock shall have the number of votes granted to it pursuant
to Article 4 of this Restated Certificate of Incorporation or any
designation of the rights, powers and preferences of any class or
series of Preferred Stock made pursuant to said Article 4 (a
"Preferred Stock Designation")), which vote shall include the
affirmative vote of at least two-thirds (2/3) of the combined voting
power of the outstanding shares of Voting Stock held by stockholders
other than the Interested Stockholder. Such affirmative vote shall be
required notwithstanding any provision of law or any other provision
of this Restated Certificate of Incorporation or any agreement with
any national securities exchange or otherwise which might permit a
lesser vote or no vote and in addition to any affirmative vote
required of the holders of any class or series of Voting Stock
pursuant to law, this Restated Certificate of Incorporation or any
Preferred Stock Designation.
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(B) The term "Business Combination" as used in this Article
5 shall mean any transaction that is referred to in any one or more
clauses (1) through (5) of Paragraph 1.(A) of this Article.
2. The provisions of Paragraph 1.(A) of this Article 5 shall
not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is
required by law, any other provision of this Restated Certificate of
Incorporation, any Preferred Stock Designation or any agreement with
any national securities exchange, if, in the case of a Business
Combination that does not involve any cash or other consideration
being received by the stockholders of the Corporation, solely in their
respective capacities as stockholders of the Corporation, the
condition specified in the following paragraph (A) is met, or, in the
case of any other Business Combination, the conditions specified in
the following paragraph (A) or the conditions specified in the
following paragraph (B) are met:
(A) such Business Combination shall have been approved by a
majority of the Disinterested Directors, or
(B) each of the five conditions specified in the following
clauses (1) through (5) shall have been met:
(1) the aggregate amount of the cash and the Fair
Market Value as of the Consummation Date of any consideration other
than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the highest of the
following (it being intended that the requirements of this clause
(B)(1) shall be required to be met with respect to all shares of
Common Stock outstanding whether or not the Interested Stockholder has
acquired any shares of the Common Stock):
(i) if applicable, the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers fees) paid in order to acquire any shares of Common Stock
beneficially owned by the Interested Stockholder which were acquired
beneficially by such Interested Stockholder (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Stockholder, whichever is
higher; or
(ii) the Fair Market Value per share of Common
Stock on the Announcement Date or on the Determination Date, whichever
is higher; or
(iii) an amount which bears the same or
greater percentage relationship to the Fair Market Value of the Common
Stock on the Announcement Date as the highest per share price
determined in (B)(1)(i) above bears to the Fair Market Value of the
Common Stock on the date of the commencement of the acquisition of the
Common Stock by such Interested Stockholder; and
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(2) the aggregate amount of the cash and the Fair
Market Value as of the Consummation Date of any consideration other
than cash to be received per share by holders of shares of any class
or series of Voting Stock (other than Common Stock) shall be at least
equal to the highest of the following (it being intended that the
requirements of this clause (B)(2) shall be required to be met with
respect to every class and series of such outstanding Voting Stock,
whether or not the Interested Stockholder has previously acquired any
shares of a particular class or series of Voting Stock):
(i) if applicable, the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers fees) paid in order to acquire any shares of such class or
series of Voting Stock beneficially owned by the Interested
Stockholder which were acquired beneficially by such Interested
Stockholder (x) within the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(ii) if applicable, the highest preferential
amount per share to which the holders of shares of such class or
series of Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(iii) the Fair Market Value per share of such
class or series of Voting Stock on the Announcement Date or the
Determination Date, whichever is higher; or
(iv) an amount which bears the same or
greater percentage to the Fair Market Value of such class of Voting
Stock on the Announcement Date as the highest per share price in
(B)(2)(i) above bears to the Fair Market Value of such Voting Stock on
the date of the commencement of the acquisition of such Voting Stock
by such Interested Stockholder; and
(3) the consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as was previously
paid in order to acquire beneficially shares of such class or series
of Voting Stock that are beneficially owned by the Interested
Stockholder and, if the Interested Stockholder beneficially owns
shares of any class or series of Voting Stock that were acquired with
varying forms of consideration, the form of consideration to be
received by each holder of such class or series of Voting Stock shall
be, at the option of such holder, either cash or the form used by the
Interested Stockholder to acquire beneficially the largest number of
shares of such class or series of Voting Stock beneficially acquired
by it prior to the Announcement Date; and
(4) after such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such Business
Combination:
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(i) such Interested Stockholder shall not have
become the beneficial owner of any additional shares of Voting Stock
of the Corporation, except as part of the transaction in which it
became an Interested Stockholder or upon conversion of convertible
securities acquired by it prior to becoming an Interested Stockholder
or as a result of a pro rata stock dividend or stock split; and
(ii) such 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 or tax credits or other tax
advantages provided by the Corporation or any Subsidiary, whether in
anticipation of or in connection with such Business Combination or
otherwise; and
(iii) such Interested Stockholder shall not
have caused any material change in the Corporation's business or
capital structure, including, without limitation, the issuance of
shares of capital stock of the Corporation to any third party; and
(iv) there shall have been (x) no failure to
declare and pay at the regular date therefor the full amount of
dividends (whether or not cumulative) on any outstanding Preferred
Stock, except as approved by a majority of the Disinterested
Directors, (y) no reduction in the annual rate of dividends paid on
Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Disinterested
Directors, and (z) an increase in such annual rate of dividends (as
necessary to prevent any such reduction) in the event of any
reclassification (including any reverse stock split),
recapitalization, reorganization, self tender offer or any similar
transaction which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such
annual rate was approved by a majority of the Disinterested Directors; and
(5) a proxy or information statement describing
the proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules and
regulations), whether or not the Corporation is then subject to such
requirements, shall be mailed by and at the expense of the Interested
Stockholder at least thirty (30) days prior to the consummation of
such Business Combination to the public stockholders of the
Corporation (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions),
and shall contain at the front thereof in a prominent place (i) any
recommendations as to the advisability (or inadvisability) of the
Business Combination which the Disinterested Directors, if any, may
choose to state, and (ii) the opinion of a reputable national
investment banking firm as to the fairness (or not) of such Business
Combination from the point of view of the remaining public
stockholders of the Corporation (such investment banking firm to be
engaged solely on behalf of the remaining public stockholders, to be
paid a reasonable fee for their services by the Corporation upon
receipt of such opinion, to be unaffiliated with such Interested
Stockholder, and, if there are at the time any Disinterested
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Directors, to be selected by a majority of the Disinterested
Directors).
3. For purposes of this Article 5:
(A) A "person" shall include, without limitation, any
individual, firm, corporation, group (as such term is used in
Regulation 13D-G of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on March, 1985) or other
entity.
(B) "Interested Stockholder" shall mean any person (other
than the Corporation or any Subsidiary or any employee benefit plan of
the Corporation or any Subsidiary) who or which:
(1) is the beneficial owner, directly or indirectly,
of more than 10 percent of the combined voting power of the then
outstanding shares of Voting Stock; or
(2) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of 10 percent or
more of the combined voting power of the then outstanding shares of
Voting Stock; or
(3) is an assignee of or has otherwise succeeded to
the beneficial ownership of any shares of Voting Stock that were at
any time within the two-year period immediately prior to the date in
question beneficially owned by an Interested Stockholder, if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(C) A person shall be a "beneficial owner" of any Voting
Stock:
(1) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether or not such right is
exercisable immediately) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the right to vote or
direct the vote pursuant to any agreement, arrangement or
understanding; or
(3) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
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(D) For the purposes of determining whether a person is an
Interested Stockholder pursuant to Paragraph 3.(B) of this Article 5,
the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned by such Interested Stockholder through
application of Paragraph 3.(C) of this Article but shall not include
any other shares of Voting Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(E) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
March, 1985.
(F) "Subsidiary" shall mean any corporation more than 50
percent of whose outstanding equity securities having ordinary voting
power in the election of directors is owned, directly or indirectly,
by the Corporation or by a Subsidiary or by the Corporation and one or
more Subsidiaries; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in Paragraph 3.(B) of
this Article 5, the term "Subsidiary" shall mean only a corporation of
which a majority of each class of Voting Stock is owned, directly or
indirectly, by the Corporation.
(G) "Disinterested Director" shall mean any member of the
Board of Directors of the Corporation who is unaffiliated with, and
not a nominee of, the Interested Stockholder and was a member of the
Board prior to the time that the Interested Stockholder became an
Interested Stockholder, and any successor of a Disinterested Director
who is unaffiliated with, and not a nominee of, the Interested
Stockholder and who is recommended to succeed a Disinterested Director
by a majority of Disinterested Directors then on the Board of
Directors.
(H) "Fair Market Value" shall mean: (1) in the case of
stock, the highest closing sale price during the 30-day period
commencing on the 40th day preceding the date in question of a share
of such stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the New York Stock
Exchange-Composite Tape, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation with
respect to a share of such stock during the 30-day period commencing
on the 40th day preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in good faith;
and (2) in the case of stock of any class or series which is not
traded on any United States registered securities exchange nor in the
over-the-counter market or in the case of property other than cash or
stock, the fair market value of such property on the date in question
as determined by a majority of the Disinterested Directors in good
faith.
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(I) In the event of any Business Combination in which the
Corporation survives, the phrase "any consideration other than cash to
be received" as used in Paragraphs 2.(B)(1) and (2) of this Article 5
shall include the shares of Common Stock and/or the shares of any
other class of outstanding Voting Stock retained by the holders of
such shares.
(J) "Announcement Date" shall mean the date of first public
announcement of the proposed Business Combination.
(K) "Determination Date" shall mean the date on which the
Interested Stockholder became an Interested Stockholder.
(L) "Consummation Date" shall mean the date of the
consummation of the Business Combination.
(M) The term "Voting Stock" shall mean all outstanding
shares of capital stock of all classes and series of the Corporation
entitled to vote generally in the election of directors of the
Corporation, in each case voting together as a single class. The term
"Voting Stock" as defined in this Paragraph 3 shall apply to the term
"Voting Stock" as used in Article 6 of this Restated Certificate of
Incorporation.
4. A majority of the Disinterested Directors shall have the
power and duty to determine, on the basis of information known to them
after reasonable inquiry, all facts necessary to determine compliance
with this Article 5 including, without limitation:
(A) whether a person is an Interested Stockholder;
(B) the number of shares of Voting Stock beneficially owned
by any person;
(C) whether a person is an Affiliate or Associate of
another person;
(D) whether the requirements of Paragraph 2.(B) of this
Article 5 have been met with respect to any Business Combination;
(E) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market
Value of $5,000,000 or more; and
(F) such other matters with respect to which a
determination is required under this Article.
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The good faith determination of a majority of the Disinterested
Directors on such matters shall be conclusive and binding for all
purposes of this Article 5.
5. Nothing contained in this Article 5 shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
6. Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80 percent of the combined voting power of the
Voting Stock, voting together as a single class, shall be required to
alter, amend, or repeal this Article 5 or to adopt any provision
inconsistent therewith provided, however, that if there is an
Interested Stockholder on the record date for the meeting at which
such action is submitted to the stockholders for their consideration,
such 80 percent vote must include the affirmative vote of at least
two-thirds (2/3) of the combined voting power of the outstanding
shares of Voting Stock held by stockholders other than the Interested
Stockholder.
Article 6. The following provisions are adopted for the
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management of the business and for the conduct of the affairs of the
Corporation and for creating, defining, limiting and regulating the
powers of the Corporation, the directors and the stockholders:
(a) Both stockholders and directors of the Corporation shall
have power to hold their meetings within or without the State of
Delaware; and the books and records of the Corporation may be kept
within or without the State of Delaware at such place or places as
may, from time to time, be designated by the Board of Directors.
(b) (i) Except as otherwise fixed pursuant to Article 4 of
the Restated Certificate of Incorporation relating to the rights of
the holders of any class or series of Preferred Stock having a
preference over the Common Stock as to dividends or upon liquidation
to elect additional directors under specified circumstances, the Board
of Directors shall consist of not less than nine or more than fifteen
persons, the exact number to be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a majority
of the total number of authorized directors (whether or not there
exists any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for adoption). The
directors (other than those who may be elected by the holders of any
class or series of Preferred Stock having a preference over Common
Stock as to dividends or upon liquidation) shall be classified, with
respect to the time for which they severally hold office, into three
classes, as nearly equal in number as possible, as shall be provided
in the manner specified in the By-Laws, one class to hold office
initially for a term expiring at the annual meeting of stockholders to
be held in 1986, another class to hold office initially for a term
expiring at the annual meeting of stockholders to be held in 1987, and
another class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1988, with the members of
each class to hold office until their successors are elected and
qualified. At each annual meeting of the stockholders of the
Corporation, the successors to the class of directors whose term expires at
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that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year
following the year of their election. The election of directors need
not be by ballot.
(ii) Advance notice of nominations for the election of
directors, other than by the Board of Directors or a committee
thereof, shall be given in the manner provided in the By-Laws.
(iii) Except as otherwise fixed pursuant to the
provisions of Article 4 hereof relating to the rights of the holders
of any class or series of Preferred Stock having a preference over the
Common Stock as to dividends or upon liquidation to elect directors
under specified circumstances, newly created directorships resulting
from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may
be filled only by a majority vote of the directors then in office,
though less than a quorum of the Board of Directors. If any
applicable provision of the Delaware General Corporation Law expressly
confers power on stockholders to fill such a directorship at a special
meeting of stockholders, such a directorship may be filled at such a
meeting only by the affirmative vote of at least 80 percent of the
combined voting powers of the outstanding shares of Voting Stock. Any
director elected in accordance with the two preceding sentences shall
hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected
and qualified. No decrease in the number of authorized directors
constituting the entire Board of Directors shall shorten the term of
any incumbent director.
(iv) Subject to the rights of the holders of any class
or series of Preferred Stock having preference over the Common Stock
as to dividends or upon liquidation to elect directors under specified
circumstances, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least 80 percent of the combined
voting power of all of the then-outstanding shares of the Voting
Stock, voting together as a single class (it being understood that for
all purposes of this Article 6, each share of the Voting Stock shall
have the number of votes granted to it pursuant to Article 4 of this
Restated Certificate of Incorporation or any Preferred Stock
Designation).
(c) The original By-Laws of the Corporation shall be adopted by
the Board of Directors. The Board of Directors shall have the power
to make, alter, amend and repeal the By-Laws of the Corporation,
subject to the power of the holders of the Voting Stock to alter,
amend or repeal the By-Laws; provided, however, that, notwithstanding
any other provisions of this Restated Certificate of Incorporation or
any provision of law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this
Restated Certificate of Incorporation or any Preferred Stock
Designation, the affirmative vote of the holders of at least 80
percent of the
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combined voting power of all the then-outstanding shares of the Voting
Stock, voting together as a single class, shall be required to (i) alter,
amend or repeal any provision of the By-Laws which is to the same effect as
paragraphs (b), (c), (i) and (j) of Article 6 of this Restated Certificate
of Incorporation, or Article 5 of this Restated Certificate of Incorporation.
(d) The business of the Corporation shall be managed by its
Board of Directors, and the Board of Directors may exercise all of the
powers of the Corporation without any action or consent by the
stockholders, except as may otherwise be provided by the statutes of
the State of Delaware, by this Restated Certificate of Incorporation,
or by the By-Laws.
(e) The Board of Directors shall have the power, in its
discretion, from, time to time to fix and vary the amounts to be
maintained as surplus and as working capital and to create and set
apart reserves for any proper purposes and to abolish any such
reserves; and to fix and determine, subject to limitations imposed by
law, what portion of the consideration received upon any issue of
stock shall constitute capital and what portion, if any, paid-in or
capital surplus; and to cause dividends to be paid from paid-in or
capital surplus or from any surplus due to appreciation in value of
any property of the Corporation; to determine whether and when
dividends shall be declared and paid and in what manner and form; and
to determine the use and disposition of any surplus or net profits of
the Corporation.
(f) The Board of Directors shall have the power to subject the
whole or any part of the real and personal properties of the
Corporation, including after-acquired property, to liens, mortgages
and encumbrances, without limit as to amount.
(g) Any director of the Corporation may vote upon any contract
or other transaction between the Corporation and any subsidiary or
affiliated corporation without regard to the fact that he is also a
director or officer of such subsidiary or affiliated corporation.
(h) The directors may, acting in good faith and in their
discretion, submit any contract, act or proposal for authorization,
approval or ratification at any meeting of stockholders, and any such
contract, act or proposal authorized, approved or ratified by a vote
of the holders of a majority of the shares of capital stock of the
Corporation represented in person or by proxy at such meeting and
entitled to vote shall be as valid and as binding upon the Corporation
and upon all stockholders as though it had been authorized, approved,
or ratified, as the case may be, by every stockholder of the
Corporation.
(i) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or
special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders. Except as
otherwise required by law and subject to the rights of the holders of
any class or any series of Preferred Stock having a preference over the
Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the Board of Directors
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pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption).
(j) Notwithstanding any other provision of this Restated
Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of
the Voting Stock required by law, this Restated Certificate of
Incorporation or any Preferred Stock Designation, the affirmative vote
of the holders of at least 80 percent of the combined voting power of
all of the then-outstanding shares of the Voting Stock, voting
together as a single class, shall be required to alter, amend or
repeal this Article 6, or any provision hereof.
Article 7. No director of the Corporation shall be personally
----------
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director; provided, however, that this
Article 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 omissions 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 from which the director derived an improper
personal benefit. This Article shall not eliminate or limit the
liability of a director for any act or omission occurring prior to the
date on which this Article becomes effective. Any repeal or
modification of this Article 7 shall not adversely affect any right or
protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the time of such
repeal or modification.
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IN WITNESS WHEREOF, the undersigned do execute this Restated
Certificate of Incorporation and affirm and acknowledge, under
penalties of perjury, that this Restated Certificate of Incorporation
is their act and deed and that the facts stated herein are true, this
11th day of May, 1998.
- ---- ----
/s/RICHARD K. SCHMIDT
--------------------------------
Name: Richard K. Schmidt
Title: President
Attest:
/s/LARRY L. BINGAMAN
- -----------------------------
Name: Larry L. Bingaman
Title: Secretary