RESTATED
CERTIFICATE OF INCORPORATION
OF
ILLINOIS TOOL WORKS INC.
(Originally incorporated as Illinois Tool Works, Inc. on June 19, 1961)
A Restatement of the Certificate of Incorporation was duly adopted by the
vote of the Board of Directors on April 30, 1984 in accordance with Section 245
of the Delaware General Corporation Law. As newly restated, this Restated
Certificate of Incorporation hereby reads as follows:
FIRST. The name of the corporation is Illinois Tool Works Inc.
SECOND. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name and address of its registered agent is The Corporation
Trust Company.
THIRD. The nature of the business, or objects or purposes to be transacted,
promoted or carried on are:
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of,
trade, deal in and deal with goods, wares and merchandise and personal
property of every class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to
undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United
States or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and
trade names, relating to or useful in connection with any business of
this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares
of the capital stock, or any voting trust certificates in respect of
the shares of capital stock, scrip, warrants, rights, bonds,
debentures, notes, trust receipts, and other securities, obligations,
chooses in action and evidences of indebtedness or interest issued or
created by any corporations, joint stock companies, syndicates,
associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or
other political subdivision or by any governmental agency, and as
owner thereof to possess and exercise all the rights, powers and
privileges of ownership, including the right to execute consents and
vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and
enhancement in value thereof.
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation,
municipality, county, state, body politic or government or colony or
dependency thereof.
To borrow or raise moneys for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make,
accept, endorse, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds debentures and other negotiable or
non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by
mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the
time owned or thereafter acquired, and to sell, pledge or otherwise
dispose of such bonds or other obligations of the corporation for its
corporate purposes.
To loan to any person, firm or corporation any of its surplus funds,
either with or without security.
To purchase, hold, sell and transfer the shares of its own capital
stock; provided it shall not use its funds or property for the
purchase of its own shares of capital stock when such use would cause
any impairment of its capital except as otherwise permitted by law,
and provided further that shares of its own capital stock belonging to
it shall not be voted upon directly or indirectly.
To have one or more offices, to carry on all or any of its operations
and business and without restriction or limit as to amount to purchase
or otherwise acquire, hold, own, mortgage, sell, convey or otherwise
dispose of, real and personal property of every class and description
in any of the states, districts, territories or colonies of the United
States, and in any and all foreign countries, subject to the laws of
such state, district, territory, colony or country.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the
laws of Delaware upon corporations formed under the General
Corporation Law of the State of Delaware, and to do any or all of the
things hereinbefore set forth to the same extent as natural persons
might or could do.
The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted
by reference to, or inference from, the terms of any clause in this
Certificate of Incorporation, but the objects and purposes specified
in each of the foregoing clauses of this Article shall be regarded as
independent objects and purposes.
FOURTH.
(1) Authorized Shares. The total number of shares of stock of all
classes which the corporation shall have authority to issue is three
hundred fifty million three hundred thousand (350,300,000), of which
three hundred thousand (300,000) shall be shares of Preferred Stock,
without par value, and three hundred fifty million (350,000,000) shall
be shares of Common Stock, par value $.01 per share.
(2) Preferred Stock.
(a) The Preferred Stock shall be issuable in series, and in
connection with the issuance of any series of Preferred
Stock and to the extent now or hereafter permitted by the
laws of the State of Delaware, the Board of Directors is
authorized to fix by resolution the designation of each
series, the stated value of the shares of each series, the
dividend rate of each series and the date or dates and other
provisions respecting the payment of dividends, the
provisions, if any, for a sinking fund for the shares of
each series, the preferences of the shares of each series in
the event of liquidation or dissolution of the corporation,
the provisions, if any, respecting the redemption of the
shares of each series and subject to requirements of the
laws of the State of Delaware, the voting rights, if any,
(provided that such shares shall not have more than one vote
per share) including any special voting rights in the event
of default in the payment of preferred dividends, the terms,
if any, upon which the shares of each series shall be
convertible into or exchangeable for any other shares of
stock of the corporation and any other relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of the
shares of each series.
(b) Preferred Stock of any series redeemed, converted,
exchanged, purchased, or otherwise acquired by the
corporation shall constitute authorized but unissued
Preferred Stock.
(c) All shares of any series of Preferred Stock, as between
themselves, shall rank equally and be identical; and all
series of Preferred Stock, as between themselves, shall rank
equally and be identical except as set forth in resolutions
of the Board of Directors authorizing the issuance of such
series.
(3) Common Stock.
(a) After dividends to which the holders of Preferred Stock may
then be entitled under the resolutions creating any series
thereof have been declared and after the corporation shall
have set apart the amounts required pursuant to such
resolutions for the purchase or redemption of any series of
Preferred Stock, the holders of Common Stock shall be
entitled to have dividends declared in cash, property, or
other securities of the corporation out of any net profits
or net assets of the corporation legally available therefor.
(b) In the event of the liquidation or dissolution of the
corporation's business and after the holders of Preferred
Stock shall have received amounts to which they are entitled
under the resolutions creating such series, the holders of
Common Stock shall be entitled to receive ratably the
balance of the corporation's net assets available for
distribution.
(c) Each share of Common Stock shall be entitled to one vote,
but shall not be entitled to vote for the election of any
directors who may be elected by vote of the Preferred Stock
voting as a class.
(4) Preemptive Rights. Unless otherwise provided by the Board of
Directors, no holder of any shares of the corporation shall have any
preemptive right to subscribe for or to acquire any additional shares
of the corporation of the same or of any other class, whether now or
hereafter authorized, or any options or warrants giving the right to
purchase any such shares, or any bonds, notes, debentures or other
securities convertible into any such shares.
FIFTH. The minimum amount of capital with which the corporation will
commence business is one thousand dollars ($1,000).
SIXTH. Names and places of residence of original incorporators - OMITTED.
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
NINTH.
(a) Except as provided in any certificate ("Certificate of
Rights of Preferred Stock") filed pursuant to Section 151(g)
of the Delaware General Corporation Law (or any amendment or
replacement of such Section) designating the number of
shares of Preferred Stock to be issued and the rights,
preferences, privileges and restrictions granted to and
imposed on the holders of such designated Preferred Stock,
as permitted by Article FOURTH hereof, the authorized number
of Directors of the corporation shall be not less than three
nor more than twenty. The initial number of Directors is
fixed at thirteen. The exact number of Directors within such
range may be changed from time to time by an amendment to
the By-Laws duly adopted as provided in Subsection (a) (1)
of Article ELEVENTH. No reduction in the number of Directors
shall have the effect of removing any Director prior to the
expiration of his term.
(b) Except as provided in any Certificate of Rights of Preferred
Stock, any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from
any increase in the number of directors, shall be filled
only by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and
any directors so chosen shall hold office until the next
annual election of directors, and until their successors
shall be elected and qualified.
(c) In furtherance and not in limitation of the powers conferred
by statute and subject to the limitations imposed by other
Articles of this Certificate of Incorporation, the Board of
Directors is expressly authorized to make, alter or repeal
the By-Laws of the corporation.
TENTH.
(a) Meetings of stockholders may be held outside the State of
Delaware, if the By-Laws so provide. The books of the
corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the corporation.
Elections of directors need not be by ballot unless the
By-Laws of the corporation shall so provide.
(b) No action shall be taken by the stockholders except at an
annual or special meeting of stockholders and no action may
be taken by written consent of the stockholders. Special
meetings of the stockholders of the corporation for any
purpose or purposes may be called at any time but only by
the chairman, the president, or by a majority of the Board
of Directors; provided, however, that if and to the extent
that any special meeting of stockholders may be called by
any other person or persons specified in any Certificate of
Rights of Preferred Stock, then such special meeting may
also be called by such person or persons in the manner, at
the times and for the purposes so specified.
ELEVENTH.
(a) New By-Laws of the corporation may be adopted or the By-Laws
of the corporation may be amended or repealed either by the
affirmative vote of a majority of the Directors of the
corporation or by the affirmative vote of the holders of a
majority of the voting power of the corporation; provided,
however, that any By-Law fixing the number of Directors may
be adopted, amended or repealed only by (1) the affirmative
vote of a majority of the Directors of the corporation;
provided, however, that if there is a Substantial
Shareholder (as defined in Article FIFTEENTH), such By-Law
also must be adopted, amended or repealed by not less than
two-thirds of the Continuing Directors (as defined in
Article FIFTEENTH), or (2) the affirmative vote of the
holders of not less than 66-2/3% of the voting power of the
Corporation; provided, however, that if there is a
Substantial Shareholder, such By-Law also must be adopted,
amended or repealed by the affirmative vote of the holders
of a majority of the voting power of the corporation held by
stockholders other than the Substantial Stockholder.
(b) The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are
granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in Articles NINTH,
TENTH, FIFTEENTH, and this Article ELEVENTH may not be
repealed or amended in any respect, nor may any cumulative
voting provision be adopted, nor may any other provision be
amended, adopted or repealed which would have the effect of
modifying or permitting circumvention of such provisions,
unless such repeal, amendment or adoption is approved by the
affirmative vote of the holders of not less than 66-2/3% of
the voting power of the corporation; provided, however, that
if there is a Substantial Shareholder, such repeal,
amendment or adoption also must be approved by the
affirmative vote of a majority of the voting power of the
corporation held by stockholders other than the Substantial
Stockholder.
TWELFTH. No contract or other transaction between the corporation and any
person, firm, association or corporation and no other act of this corporation
shall, in the absence of fraud, be invalidated or in any way affected by the
fact that any of the directors of the corporation are, directly or indirectly,
pecuniarily or otherwise interested in such contract, transaction or other act
or related to or interested in such person, firm, association or corporation as
director, stockholder, officer, employee, member or otherwise. Any director of
the corporation individually, or any firm or association of which any director
may be a member, may be a party to, or may be pecuniarily or otherwise
interested in, any contract or transaction of the corporation; provided that the
fact that he individually or such firm or association is so interested shall be
disclosed or known to the Board of Directors or a majority of such members
thereof as shall be present at any meeting of the Board of Directors, or of any
committee of directors having the powers of the full Board, at which action upon
any such contract, transaction or other act is taken, and if such fact shall be
so disclosed or known, any director of this corporation so related or otherwise
interested may be counted in determining the presence of a quorum at any meeting
of the Board of Directors or of such committee at which action upon any such
contract, transaction or act shall be taken and may vote thereat with respect to
such action with like force and effect as if he were not so related or
interested. 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 of such subsidiary or
affiliated corporation.
THIRTEENTH. No director of the corporation shall be personally liable to
the corporation or to any of its stockholders for monetary damages for any
breach of fiduciary duty as a director provided, however, that the foregoing
shall not limit or eliminate liability for breach of a director's duty of
loyalty, for failure of a director to act in good faith, for engaging in
intentional misconduct or knowingly violating a law, for obtaining an improper
personal benefit, or for acting to pay a dividend or approving a stock
repurchase that is illegal under Section 174 of the General Corporation Law of
the State of Delaware. This Article shall apply to acts or omissions occurring
subsequent to May 4, 1987, and any repeal or modification of this Article shall
not adversely affect any right or protection existing at the time of such repeal
or modification.
FOURTEENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stock holders, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this corporation under the provisions of
section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders of this corporation,
as the case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders, of this corporation, as the case may be, and also on this
corporation.
FIFTEENTH.
(a) Definitions. For the purpose of this Article FIFTEENTH:
(1) Except as provided in this Subsection and Subsection (a) (9)
below, "Affiliate" and "Associate" shall have the 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 2, 1984. No relative or spouse of a person (and
no relative of such spouse) who is a director or officer of the
corporation shall be an Affiliate or Associate of such person or
of the corporation solely as a result of such person being a
director or officer of the corporation.
(2) Except as provided in Subsection (a) (9) below, a Person (as
defined in Subsection (a) (7) below) shall be the "Beneficial
Owner" of (or shall "Beneficially Own") any Voting Stock (A)
which such Person beneficially owns, directly or indirectly, as
determined under Rule 13d-3 of the General Rules and Regulations
under the Security Exchange Act of 1934, as in effect on March 2,
1984 or (B) which such Person has the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) upon the exercise of conversion rights, exchange rights,
warrants, options or otherwise.
(3) The term "Business Combination" shall mean any of the
following transactions:
(A) any merger or consolidation of the corporation
or any Subsidiary with or into (i) any Substantial
Stockholder irrespective of which entity is the
survivor or (ii) any other corporation which is,
or after such merger or consolidation would be, an
Affiliate or Associate of such Substantial
Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction
or a series of transactions) to or with any
Substantial Stockholder of any Properties or
assets of the corporation (including without
limitation any securities of a Subsidiary) or any
Subsidiary having an aggregate Fair Market Value of
more than one percent of the total gross assets of the
corporation on a consolidated basis as of the end of
the preceding fiscal year; or
(C) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction
or a series of transactions) to or with the
corporation or a Subsidiary of any properties or
assets of a Substantial Stockholder having an
aggregate Fair Market Value of more than one percent
of the total gross assets of the corporation on a
consolidated basis as of the end of the preceding
fiscal year; or
(D) the issuance, transfer or delivery by the corporation
of stock or other securities of the corporation or of
any Subsidiary (in one transaction or a series of
transactions) to or with any Substantial Stockholder
(except any issuance, transfer or delivery made to
security holders generally); or
(E) the issuance, transfer or delivery by a Substantial
Stockholder of stock or other securities of such
Substantial Stockholder (in one transaction or
a series of transactions) to or with the corporation
or a Subsidiary (except any issuance, transfer or
delivery made to security holders of the
Substantial Stockholder generally); or
(F) the adoption of any plan or proposal for the
liquidation of the corporation proposed by or on
behalf of a Substantial Stockholder; or
(G) any reclassification of securities (including any
reserve stock split), or recapitalization of the
corporation, or any merger or consolidation of the
corporation with an; of its Subsidiaries or any
other transact on (whether or not with or into or
otherwise involving a Substantial Stockholder),
which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding
shares of any class of equity or convertible
securities of the corporation or any Subsidiary
which is directly or indirectly owned by any
Substantial Stockholder; or
(H) any agreement, arrangement, contract or understanding
which provides, in whole or in part, for any of the
transactions described in this Subsection (3).
(4) "Common Stock" means the issued and outstanding shares of
common stock of the corporation.
(5) "Continuing Director" means any member of the Board of
Directors of the corporation who is not an Affiliate or Associate
of a Substantial Stockholder and who either (A) was a member of
the Board of Directors prior to the time that the Substantial
Stockholder became a Substantial Stockholder, or (B) was
designated a Continuing Director by not less than two-thirds of
the then Continuing Directors at the time of such director's
initial election to the Board of Directors.
(6) "Fair Market Value" means: (A) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for the New York Stock Exchange, or, if such stock
is not quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on
the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the
highest closing sale price, or if none, the highest closing bid
quotation, with respect to a share of such stock during the
3O-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations
System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a
share of such stock as determined by the Continuing Directors in
good faith; and (B) 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 Continuing Directors
in good faith.
(7) "Person" includes a natural person, corporation, partnership,
association, joint stock company, trust, unincorporated
association or other entity. Except as provided in Subsection (a)
(9) below, when two or more persons act as a partnership, limited
partnership, syndicate or other group for the purpose of
acquiring, holding, voting or disposing of common stock, such
syndicate or group shall be deemed a "Person".
(8) "Subsidiary" means any corporation of which a majority of any
class of equity security is beneficially owned, directly or
indirectly, by the corporation.
(9) "Substantial Stockholder" means any Person (other than the
corporation 01 any Subsidiary) which, together with any and all
Affiliates or Associates of such Person after March 2, 1984,
became and then is the Beneficial Owner, directly or indirectly,
of more than 10% of the voting power of the outstanding Voting
Stock, excluding Voting Stock Beneficially Owned by such person
on March 2, 1984. In determining whether a Person is a
Substantial Stockholder, or whether a Person is an Affiliate or
Associate of a Substantial Stock- holder, or whether a Person is
included within the definition of another Person, (A) no trust
which was in existence on March 2, 1984 and was a stockholder of
the corporation on that date ("Stockholder-Trust") shall be an
Affiliate or Associate of any other Stockholder-Trust, (B) no
trustee or successor trustee of any Stockholder-Trust shall be an
Affiliate or Associate of such trust or of any other
Stockholder-Trust or of any other trustee or successor trustee of
any Stock- holder-Trust or Stockholder-Trusts (including a
trustee and himself, herself or itself if trustee of more than
one such trust) by reason of such trusteeship, (C) no trustee or
successor trustee of any Stockholder-Trust shall be the
Beneficial Owner of any Voting Stock Beneficially Owned by such
trust by reason of such trusteeship, and (D) no two or more
Stockholder-Trusts, no two or more trustees or successor trustees
of any Stockholder-Trust or Stockholder-Trusts (including a
trustee and himself, herself or itself if trustee of more than
one such trust) by reason of such trusteeship, and no trustee or
successor trustee of any Stockholder-Trust or Stockholder-Trusts
by reason of such trusteeship and any such trust or trusts shall
be deemed a Person. Except as set forth in the immediately
preceding sentence, "Substantial Stockholder" shall include any
and all Affiliates and Associates of a Substantial Stockholder,
and any Person with which a Substantial Stockholder or its
Affiliates or Associates have any understanding, agreement, or
arrangement, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of Voting Stock, and the
shares of Voting Stock Beneficially Owned by a Substantial
Stockholder shall include any shares Beneficially Owned by any
such Affiliate or Associate and any such Person. For the purposes
of determining whether a Person is a Substantial Stockholder, the
number of shares of Voting Stock deemed to be outstanding shall
include shares deemed Beneficially Owned by a Substantial
Stockholder or its Affiliates or Associates but shall not include
any other shares which may be issuable to any other Person
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(10) "Voting Stock" means the then outstanding shares of all
classes of capital stock of the corporation which are entitled to
vote for the election of directors of the corporation generally,
but not including those which are entitled to vote for the
election of one or more directors only in the event of certain
contingencies such as dividend arrearages.
(b) Supermajority Vote Required. In addition to any affirmative
vote required by law or this Certificate, and except as provided
in Section (c) below, any Business Combination shall require (1)
the affirmative vote of the holders of not less than 66-2/3% of
the voting power of the Voting Stock, voting together as a single
class, and (2) the affirmative vote of the holders of a majority
of the voting power of the Voting Stock held by stockholders
other than the Substantial Stockholder, voting together as a
single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a
lesser percentage may be specified by law or in any agreement
with any national securities exchange or otherwise.
(c) Supermajority Vote Not Required. The provisions of Section
(b) above shall not be applicable to any particular Business
Combination, and such Business Combination shall require only
such affirmative vote as is required by law and any other
provision of this Certificate, if any of the conditions set forth
in Subsections (c) (1) through (4) below are satisfied with
respect to such Business Combination.
(1) The Business Combination shall have been approved in writing
by not less than two-thirds of the Continuing Directors.
(2) The Business Combination shall have been approved by a duly
adopted resolution of the Board of Directors prior to the
Substantial Stockholder becoming a "Substantial Stockholder".
(3) The Business Combination is solely between the corporation
and another corporation of which more than 50% of the outstanding
shares of all classes of stock entitled to vote in an election of
directors is owned by the corporation and its Subsidiaries.
(4) All of the conditions set forth in this Subsection (c) (4)
are satisfied with respect to such Business Combination.
(A) The aggregate of the cash and the Fair Market Value of
the property, securities or other consideration
(including without limitation Common Stock of the
corporation retained by stockholders of the
corporation other than the Substantial Stockholder
or other parties to such Business Combination in the
event of a Business Combination in which the
corporation is the surviving corporation) to be
received per share by holders of Common Stock to
the corporation in the Business Combination is not
less than the highest per share price (including
brokerage commissions, transfer taxes and soliciting
dealers' fees and with appropriate adjustments for
recapitalizations and stock splits, stock dividends and
like distributions) paid by the Substantial
Stockholder in acquiring any of its holdings of the
corporation's Common Stock, without regard to whether
such holdings were acquired before or after the
Substantial Stockholder became a Substantial
Stockholder. For purposes of this Subsection (c) (4)
(A), if the consideration paid in any such
acquisition of Common Stock consisted, in whole or in
part, of consideration other than cash, then such
other consideration shall be valued at the Fair Market
Value thereof at the time of the consummation of the
Business Combination.
(B) After becoming a Substantial Stockholder and prior to the
consummation of any Business Combination, such Substantial
Stockholder shall not have (i) acquired any newly issued shares
of capital stock, directly or indirectly, from the corporation
(except upon conversion of convertible securities acquired by it
prior to becoming a Substantial Stockholder or upon compliance
with the provisions of this Article FIFTEENTH or as a result of a
pro rata stock dividend or stock split), (ii) acquired any
additional shares of Voting Stock or securities convertible into
Voting Stock except as part of the transaction pursuant to which
the Substantial Stockholder became a Substantial Stockholder,
(iii) received the benefit, directly or indirectly (except
proportionally as a stockholder) of any loans, advances,
guarantees, pledges or other financial assistance or tax credits
provided by the corporation or (iv) initiated any proposals that
result in any major changes in the corporation's business or
capital structure.
(C) A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934 or any successor or amendatory
statute (whether or not the corporation is then subject to such
requirements) shall be mailed to stockholders of the corporation
for the Purpose of soliciting stockholder approval of any
Business Combination and shall contain at the front thereof, in a
prominent place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing
Directors, or any of them, may choose to state and, if deemed
advisable by a majority of the Continuing Directors, an opinion
of an investment banking firm as to the fairness (or lack
thereof) of the terms of such Business Combination, from the
point of view of the remaining stock-holders of the corporation
(such investment banking firm to be selected by a majority of the
Continuing Directors and to be paid a reasonable fee for its
services by the corporation.
(d) Acts of Continuing Directors. A majority of the Continuing
Directors shall have the power and shall use their best efforts
to determine, for purposes of this Article FIFTEENTH and on the
basis of information known to them:
(1) Whether the proposed Business Combination is within the
scope of this Article FIFTEENTH;
(2) Whether a stockholder is a Substantial Stockholder;
(3) The per share value proposed to be paid to (or retained
by) the holders of Common Stock of the corporation in the
Business Combination, within the meaning of Subsection (c)
(4) above;
(4) The highest price per share paid by a Substantial
Stockholder within the meaning of Subsection (c)
(4) above; and
(5) Whether all of the conditions of Subsection (c) (4) have
been satisfied.
(e) Fiduciary Obligations.
(1) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Substantial Stockholder from any
fiduciary obligation imposed by law. In addition,
nothing contained in this Article FIFTEENTH shall prevent any
stockholder of the corporation from objecting to any
Business Combination and from demanding any appraisal;
rights which may be available to such stockholder under
Section 262 of the Delaware General Corporation Law.
(2) The fact that any Business Combination complies with the
provisions of Subsection (c) (4) above shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors or any member
thereof to approve such Business Combination or recommend
its adoption or approval to the stockholders of the
Corporation, nor shall such compliance limit, prohibit
or otherwise restrict in any manner the Board of
Directors or any member thereof with respect to
evaluations of or actions and responses taken with respect to
such Business Combination.