EXHIBIT 3(ii)
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COMPOSITE 5/28/92
RESTATED CERTIFICATE OF INCORPORATION
OF
INGERSOLL-RAND COMPANY
Pursuant to Section 14A:9-5 of the New Jersey
Business Corporation Act
INGERSOLL-RAND COMPANY, a corporation organized and existing
under the laws of the State of New Jersey (hereinafter called the
"Company") restates and integrates its certificate of
incorporation to read in full as herein set forth.
First. The name of the Company is INGERSOLL-RAND COMPANY.
Second. The address of the Company's current registered
office is 28 West State Street, Trenton, New Jersey 08608, and
the name of its current registered agent is The Corporation Trust
Company.
Third. The Company may engage in any activity within the
purposes for which corporations may be organized under the New
Jersey Business Corporation Act.
Fourth. The aggregate number of shares which the Company
shall have authority to issue is 410,000,000, consisting of
10,000,000 shares of Preference Stock, without nominal or par
value (hereinafter referred to as "Preference Stock"), and
400,000,000 shares of Common Stock, of the par value of $2 per
share (hereinafter referred to as "Common Stock").
The designations, preferences, voting powers and other
special rights, qualifications, limitations and restrictions of
the Preference Stock and Common Stock of the Company are as
follows:
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EXHIBIT 3(ii)
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A. PREFERENCE STOCK:
(1) Manner of Issue; Series. The Board of Directors is
empowered to cause the Preference Stock to be issued from time to
time as shares of one or more series of Preference Stock, and in
the resolution or resolutions providing for the issue of shares
of each particular series, before issuance, the Board of
Directors is expressly authorized to fix:
(a) the distinctive designation of such series and the
number of shares which shall constitute such series, which
number may be increased (except as otherwise provided by the
Board of Directors in creating such series) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by resolution of the Board of
Directors;
(b) the rate of dividends payable on shares of such
series and the date or dates from which dividends shall
accumulate;
(c) the terms, if any, on which shares of such series
may be redeemed, including, without limitation, the
redemption price or prices for such series, which may
consist of a redemption price or scale of redemption prices
applicable only to redemption in connection with a sinking
fund (which term as used herein shall include any fund or
requirement for the periodic purchase or redemption of
shares), and the same or a different redemption price or
scale of redemption prices applicable to any other
redemption;
(d) the terms and amount of any sinking fund provided
for the purchase or redemption of shares of such series;
(e) the amount or amounts which shall be paid to the
holders of shares of such series in case of liquidation,
dissolution or winding up of the Company, whether voluntary
or involuntary;
(f) the terms, if any, upon which the holders of
shares of such series may convert shares thereof into stock
of any other class or classes or of any one or more series
of the same class or of another class or classes; and
(g) such other rights, preferences and limitations as
may be permitted to be fixed by the Board of Directors of
the Company under the laws of the State of New Jersey as in
effect at the time of the creation of such series.
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All shares of Preference Stock, irrespective of series, shall be
of equal rank, and shall be identical in all respects except as
to the terms fixed by the Board of Directors as permitted in this
Section A. The Board of Directors is authorized to change the
designation, rights, preferences and limitations of any series of
Preference Stock theretofore established, no shares of which have
been issued. The Board of Directors is authorized to amend the
Company's certificate of incorporation to set forth the
designation, number of shares, rights, preferences and
limitations of any series of Preference Stock fixed by the Board
of Directors, or to reflect any change therein made by the Board
of Directors, as permitted in this Section A.
(2) Dividends. The holders of the Preference Stock shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Company legally available for the
payment of dividends, cumulative dividends in cash at the annual
rate for each particular series theretofore fixed by the Board of
Directors as hereinabove provided, and no more, payable in
respect of each series on the date or dates which shall be fixed
by the Board of Directors with respect to each particular series.
If at any time there are two or more series of Preference
Stock outstanding, any dividend paid upon shares of Preference
Stock in an amount less than all dividends accrued and unpaid on
all outstanding shares of Preference Stock shall be paid ratably
among all series of Preference Stock in proportion to the full
amount of dividends accrued and unpaid on each such series.
So long as any of the Preference Stock is outstanding, no
dividend whatever shall be paid or declared, nor any distribution
be made, on the Common Stock or any other stock of the Company
ranking junior to the Preference Stock in the payment of
dividends (other than a dividend payable in stock of junior rank
as aforesaid), nor shall any shares of Common Stock or any other
stock of junior rank as aforesaid be acquired for a consideration
by the Company or by any subsidiary except in exchange for shares
of stock of junior rank as aforesaid unless (i) full dividends
on the Preference Stock for all past dividend periods shall have
been paid or shall have been declared and a sufficient sum set
apart for the payment thereof, and (ii) all obligations of the
Company, if any, with respect to the redemption or purchase of
shares of Preference Stock in accordance with the requirements of
any sinking fund have been met. Subject to the foregoing
provisions, such dividends (payable in cash, stock or otherwise)
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EXHIBIT 3(ii)
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as may be determined from time to time by the Board of Directors
may be declared and paid on the Common Stock or any other stock
of junior rank out of the remaining funds of the Company legally
available for the payment of dividends; and the Preference Stock
shall not be entitled to participate in any such dividends,
whether payable in cash; stock or otherwise.
(3) Redemption. If so provided by the Board of Directors
pursuant to paragraph (1)(c) of this Section A, the Company, at
the option of the Board of Directors, or in accordance with the
requirements of any sinking fund for the Preference Stock or any
series thereof, may redeem the whole or any part of the
Preference Stock at any time outstanding, or the whole or any
part of any series thereof, at such time or times and from time
to time and at such redemption price or prices as may be fixed by
the Board of Directors pursuant to this Section A, together in
each case with an amount equal to all unpaid dividends accrued
thereon to the date fixed for such redemption, and otherwise upon
the terms and conditions fixed by the Board of Directors for any
such redemption; provided, however, that no optional redemption
of less than all of the Preference Stock shall take place unless
(i) full dividends on the Preference Stock for all past dividend
periods shall have been paid or declared and a sufficient sum set
apart for the payment thereof, and (ii) all obligations of the
Company, if any, with respect to the redemption or purchase of
shares of Preference Stock in accordance with the requirements of
any sinking fund have been met. If at any time there are two or
more series of Preference Stock outstanding, any amount expended
in purchasing or redeeming shares of Preference Stock pursuant to
the provisions of sinking funds therefor which is less than the
amount then required to be so expended under all such funds shall
be expended ratably among all series of Preference Stock in
proportion to the full amount of expenditures of such funds then
required in respect of each such series.
(4) Liquidation, Dissolution and Winding Up. In the event
of any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each series of
Preference Stock then outstanding shall be entitled to receive
out of the assets of the Company, before any distribution or
payment shall be made to the holders of the Common Stock or any
other stock of Company ranking junior to the Preference Stock
with respect to the distribution of assets, the amount determined
by the Board of Directors in creating such series, plus in each
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case an amount equal to all unpaid dividends accrued thereon to
the date fixed for such payment to the holders of the Preference
Stock. If upon any such liquidation, dissolution or winding up,
two or more series of Preference Stock are outstanding, any
distribution to holders of Preference Stock in an aggregate
amount less than the total payable with respect to all
outstanding Preference Stock shall be made ratably among all
series of Preference Stock in proportion to the full amount
payable upon such liquidation, dissolution or winding up in
respect of each such series.
(5) Voting. The holders of the Preference Stock shall have
the voting rights set forth below:
(a) Except as otherwise expressly provided in the
Company's certificate of incorporation, as amended, or as may be
required by law, the holders of the Preference Stock shall be
entitled at all meetings of stockholders to three votes for each
five shares of such stock held by them respectively (a holder of
less than five shares being entitled to no vote) and the holders
of all series of Preference Stock shall vote together with the
holders of the Common Stock as one class. At all elections of
directors each holder of Preference Stock shall be entitled to as
many votes as shall equal the number of votes which such holder
would be entitled to cast, multiplied by the number of directors
to be elected, and such holder may cast all such votes for a
single director, or may distribute them among the number to be
voted for or any two or more of them as such holder may see fit.
(b) If and whenever dividends on the Preference Stock
shall be in arrears in an amount equivalent to six quarterly
dividends or mandatory sinking fund payments shall be in arrears
in an amount equal to the aggregate of all such payments required
during one year, then, at any ensuing annual meeting of
stockholders at which at least a majority of the outstanding
shares of Preference Stock are represented, the holders of the
Preference Stock of all series thereof then outstanding, voting
separately as a class, shall be entitled to elect two directors.
Such right of the holders of the Preference Stock shall continue
to be exercisable until all dividends in arrears on the
Preference Stock shall have been paid in full or declared and a
sum sufficient for the payment thereof set apart and all
mandatory sinking fund payments in arrears shall have been paid
in full, whereupon such right shall cease. During any time that
the holders of the Preference Stock are entitled to elect two
directors as hereinabove provided, they shall also be entitled to
participate with the Common Stock in the election of any other
directors.
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(c) Notwithstanding any other provision of the
Company's certificate of incorporation, as amended,
(i) the affirmative approval of the holders of at
least two-thirds in interest of the Preference Stock of all
series thereof then outstanding present and voting at a meeting,
acting as a single class without regard to series, shall be
required for any amendment of the certificate of incorporation
altering materially and adversely any existing provision of the
Preference Stock or for the creation, or an increase in the
authorized amount, of any class of stock ranking, as to dividends
or assets, prior to the Preference Stock; and
(ii) the affirmative approval of the holders of
at least a majority in interest of the Preference Stock of all
series thereof then outstanding present and voting at a meeting,
acting as a single class without regard to series, shall be
required for an increase in the authorized amount of the
Preference Stock, or for the creation, or an increase in the
authorized amount, of any class of stock ranking, as to dividends
or assets, on a parity with the Preference Stock;
provided, however, that if any amendment of the certificate of
incorporation shall affect adversely the rights or preferences of
one or more, but not all, of the series of Preference Stock at
the time outstanding, or shall unequally adversely affect the
rights or preferences of different series of Preference Stock at
the time outstanding, the affirmative approval of the holders of
at least two-thirds in interest of the shares of each such series
so adversely or unequally adversely affected present and voting
at a meeting shall be required in lieu of or (if such affirmative
approval is required by law) in addition to the affirmative
approval of the holders of at least two-thirds in interest of the
shares of Preference Stock as a class present and voting at such
meeting.
(6) Preemptive Rights. No holder of shares of any series
of the Preference Stock shall, as such, have any preemptive or
preferential rights to subscribe to or purchase shares of any
class or series of stock of the Company, now or hereafter
authorized, or any securities convertible into, or warrants or
other evidences of optional rights to purchase or subscribe to,
shares of any class or series of the Company, now or hereafter
authorized.
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(7) Other Provisions. Subject to the requirements of
paragraph (5)(c) of this Section A, but notwithstanding any other
of the foregoing provisions of this Section A, the Board of
Directors, in the resolution or resolutions providing for the
issue of any series of Preference Stock, may determine to the
extent that the Board of Directors may be permitted to do so
under the laws of the State of New Jersey as in effect at the
time of the creation of such series:
(a) the voting rights, full or limited, if any, of the
shares of such series; and whether or not and under what
conditions the shares of such series (alone or together with the
shares of one or more other series having similar provisions)
shall be entitled to vote separately as a single class, for the
election of one or more additional directors of the Company in
case of dividend arrearages or other specified events, or upon
other matters;
(b) whether or not and upon what conditions dividends
on shares of such series shall be cumulative and, if cumulative,
the date or dates from which dividends shall accumulate;
(c) whether or not the holders of shares of such
series, as such, shall have any preemptive or preferential rights
to subscribe to or purchase shares of any class or series of
stock of the Company, now or hereafter authorized, or any
securities convertible into, or warrants or other evidences of
optional rights to purchase or subscribe to, shares of any class
or series of the Company, now or hereafter authorized; and
(d) whether or not the issuance of additional shares
of such series, or of any shares of any other series, shall be
subject to restrictions as to issuance, or as to the preferences,
rights and qualifications of any such other series.
(8) Creation and Terms of Series A Preference Stock.
There is hereby created a series of Preference Stock, without par
value, of the Company, which shall have the designation and
number of shares, and voting powers, preferences and relative,
participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions
thereof (in addition to those provisions set forth above in this
Section A that are applicable to the Preference Stock of all
series) as follows:
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(a) Designation and Amount. The shares of such series
shall be designated "Series A Preference Stock" ("Series A
Preference Stock") and the number of shares constituting such
series shall be 750,000. Subject to subparagraph (d)(iii) of
this paragraph (8), such number may be increased or decreased by
resolution of the Board of Directors; provided, however, that no
decrease shall reduce the number of shares of Series A Preference
Stock to a number less than that of the shares then outstanding.
(b) Dividends and Distributions.
(i) Subject to the prior and superior rights of
the holders of any shares of any series of Preference Stock
ranking prior and superior to the Series A Preference Stock and
subject to the provisions for adjustment hereinafter set forth,
the holders of shares of Series A 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, (A)
cash dividends in an amount per share (rounded to the nearest
cent) equal to 100 times the aggregate per share amount of all
cash dividends declared or paid on the Common Stock, and (B) a
preferential cash dividend (a "Preferential Dividend"), if any,
on the fifteenth day of January, April, July and October of each
year (each 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 Preference
Stock, in an amount equal to $1.00 per share of Series A
Preference Stock less the per share amount of all cash dividends
declared on the Series A Preference Stock pursuant to clause (A)
of this sentence 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 Preference Stock. In the event
the Company shall, at any time after the issuance of any share or
fraction of a share of Series A Preference Stock, make any
distribution on the shares of Common Stock, whether by way of a
dividend or a reclassification of stock, a recapitalization,
reorganization or partial liquidation of the Company or
otherwise, which is payable in cash or any debt security, debt
instrument, real or personal property or any other property
(other than cash dividends subject to clause (A) of the
immediately preceding sentence and other than a distribution of
shares of Common Stock or other capital stock of the Company and
other than a distribution of rights or warrants to acquire any
such share, including any debt security convertible into or
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EXHIBIT 3(ii)
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exchangeable for any such share, at a price less than the Current
Market Price of such share), then and in each such event the
Company shall simultaneously pay on each then outstanding share
of Series A Preference Stock of the Company a distribution, in
like kind, of 100 times (subject to the provisions for adjustment
hereinafter set forth) such distribution paid on a share of
Common Stock. The dividends and distributions on the Series A
Preference Stock to which holders thereof are entitled pursuant
to clause (A) of the first sentence of this paragraph and the
second sentence of this paragraph are hereinafter referred to as
"Participating Dividends", and the multiple of cash and non-cash
dividends on the Common Stock applicable to the determination of
the Participating Dividends, which shall be 100 initially but
shall be adjusted from time to time as hereinafter provided, is
hereafter referred to as the "Dividend Multiple." In the event
the Company shall at any time after December 22, 1988 declare or
pay any dividend or make any distribution on Common Stock payable
in shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding
shares of Common Stock into a greater or lesser number of shares
of Common Stock, then in each such event the Dividend Multiple
thereafter applicable to the determination of the amount of
Participating Dividends which holders of shares of Series A
Preference Stock shall be entitled to receive shall be the
Dividend Multiple applicable immediately prior to such event
multiplied 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.
(ii) The Company shall declare each Participating
Dividend at the same time it declares any cash or non-cash
dividend or distribution on the Common Stock in respect of which
a Participating Dividend is required to be paid. No cash or non-
cash dividend or distribution on the Common Stock in respect of
which a Participating Dividend is required shall be paid or set
aside for payment on the Common Stock unless a Participating
Divided in respect of such dividend or distribution on the Common
Stock shall be simultaneously paid or set aside for payment on
the Series A Preference Stock.
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EXHIBIT 3(ii)
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(iii) Preferential Dividends shall begin to
accumulate on outstanding shares of Series A Preference Stock
from the Quarterly Dividend Payment Date next preceding the date
of issuance of any shares or Series A Preference Stock.
Accumulated but unpaid Preferential Dividends shall cumulate but
shall not bear interest. Preferential Dividends paid on the
shares of Series A Preference Stock in an amount less than the
total amount of such dividends at the time accumulated and
payable on such shares shall be allocated pro rata on a share-by-
share basis among all shares at the time outstanding. The Board
of Directors may fix a record date for the determination of
holders of shares of Series A Preference Stock entitled to
receive payment of a dividend or distribution thereon, which
record date shall be no more than 60 days prior to the date fixed
for payment thereof.
(c) Voting Rights. The holders of shares of Series A
Preference Stock shall have the following voting rights:
(i) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preference Stock
shall entitle the holder thereof to one hundred votes on all
matters submitted to a vote of the stockholders of the Company.
In the event the Company shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination 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 A
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.
(ii) Except as otherwise provided herein or by
law, the holders of shares of Series A 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
Company.
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(iii) In the event that a default in preference
dividends on any Series A Preference Stock of the Company shall
exist, the number of directors constituting the Board of
Directors of the Company shall be increased by two, and the
holders of Series A Preference Stock shall have the right at the
next meeting of stockholders called for the election of directors
voting separately as a class with the holders of shares of any
other series of Preference Stock entitled to vote thereon (if
any) (as used in this subparagraph (c)(iii), "Preference Stock"
shall refer to the Series A Preference Stock and such other
series (if any) upon which such voting rights have been
conferred, but shall not include any other series of Preference
Stock (if any) upon which such voting rights have not been
conferred) to the exclusion of the holders of Common Stock, to
elect two directors of the Company to fill such newly created
directorships. Such right shall continue until there are no
dividends in arrears upon the Series A Preference Stock. Each
director elected by the holders of shares of Preference Stock
(herein called a "Preference Director") shall continue to serve
as such director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a
default in preference dividends shall cease to exist. Any
Preference Director may be removed by, and shall not be removed
without cause except by, the vote of the holders of record of the
outstanding shares of Preference Stock, voting separately as a
class at a meeting of the stockholders, or of the holders of
shares of Preference Stock, called for the purpose. So long as a
default in any preference dividends on the Preference Stock shall
exist (A) any vacancy in the office of a Preference Director may
be filled (except as provided in the following clause (B)) by an
instrument in writing signed by the remaining Preference Director
and filed with the Company and (B) in case of the removal of any
Preference Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preference Stock at the same
meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preference Director shall
be deemed, for all purposes hereof, to be a Preference Director.
Whenever the term of office of the Preference Directors shall end
and a default in preference dividends shall no longer exist, the
number of directors constituting the Board of Directors shall be
reduced by two. For the purposes hereof, a "default in
preference dividends" on the Series A Preference Stock shall be
deemed to have occurred whenever the amount of accrued dividends
upon Series A Preference Stock shall be equivalent to six full
quarter-yearly dividends or more and, having so occurred, such
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default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of Series A Preference
Stock then outstanding shall have been paid to the end of the
last preceding quarterly dividend period.
(iv) Except as otherwise required by law or set
forth herein, holders of Series A 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 the taking of any corporate
action.
(d) Certain Restrictions.
(i) Whenever Preferential Dividends or
Participating Dividends are in arrears or the Company shall be in
default in payment thereof, thereafter and until all accumulated
and unpaid Preferential Dividends and Participating Dividends,
whether or not declared, on shares of Series A Preference Stock
outstanding shall have been paid or set aside for payment in
full, and in addition to any and all other rights which any
holder of shares of Series A Preference Stock may have in such
circumstances, the Company shall not
(A) declare or pay dividends on, make any other
distributions on or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preference 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 A Preference Stock, unless dividends
are paid ratably on the Series A Preference 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;
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(C) except as permitted by subparagraph (D) of
this subparagraph (d)(i), redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preference Stock, provided that the Company may
at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Company ranking junior (both as to dividends and upon
liquidation, dissolution or winding up) to the Series A
Preference Stock; or
(D) purchase or otherwise acquire for
consideration any shares of Series A Preference Stock, or any
shares of stock ranking on a parity with the Series A Preference
Stock (either as to dividends or upon liquidation, dissolution or
winding up), 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.
(ii) 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 subparagraph (i) of this paragraph (d), purchase or
otherwise acquire such shares at such time and in such manner.
(iii) The Company shall not issue any shares of
Series A Preference Stock except upon exercise of Rights issued
pursuant to that certain Rights Agreement dated as of December 7,
1988 between the Company and The Bank of New York (the "Rights
Agreement"), a copy of which is on file at the principal
executive office of the Company and shall be made available to
holders of record of Common Stock or Series A Preference Stock
without charge upon written request therefor addressed to the
Secretary of the Company. Notwithstanding the foregoing
sentence, nothing contained in the provisions hereof shall
prohibit or restrict the Company from issuing for any purpose any
series of Preference Stock with rights and privileges similar to,
different from, or greater than those of the Series A Preference
Stock.
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(e) Reacquired Shares. Any shares of Series A
Preference Stock purchased or otherwise acquired by the Company
in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. The Company shall cause all such
shares upon their retirement and cancellation to become
authorized but unissued shares of Preference Stock, without
designation as to series, and such shares may be reissued as part
of a new series of Preference Stock to be created by resolution
or resolutions of the Board of Directors.
(f) Liquidation, Dissolution or Winding Up. Upon any
voluntary or involuntary liquidation, dissolution or winding up
of the Company, no distribution shall be made (i) to the holders
of shares of stock ranking junior to the Series A Preference
Stock (upon liquidation, dissolution or winding up) unless the
holders of shares of Series A Preference Stock shall have
received, subject to adjustment as hereinafter provided, the
greater of either (A) $100.00 per share plus an amount equal to
accumulated and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (B) the
amount equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock, or (ii) to the holders of
stock ranking on a parity upon liquidation, dissolution or
winding up with the Series A Preference Stock, unless
simultaneously therewith distributions are made ratably on the
Series A Preference Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of
shares of Series A Preference Stock are entitled under clause
(i)(A) of this sentence and to which the holders of such parity
shares are entitled, in each case upon such liquidation,
dissolution or winding up. The amount to which holders of Series
A Preference Stock shall be entitled upon liquidation,
dissolution or winding up of the Company pursuant to clause
(i)(B) of the foregoing sentence is hereinafter referred to as
the "Participating Liquidation Amount," and the multiple of the
amount to be distributed to holders of shares of Common Stock
upon the liquidation, dissolution or winding up of the Company
applicable pursuant to said clause to the determination of the
Participating Liquidation Amount, which shall be 100 initially
but shall be adjusted from time to time as hereinafter provided,
is hereinafter referred to as the "Liquidation Multiple." In the
event the Company shall at any time after December 22, 1988
declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or split or a combination,
consolidation or reverse split of the outstanding shares of
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Common Stock into a greater or lesser number of shares of Common
Stock, then in each such case the Liquidation Multiple thereafter
applicable to the determination of the Participating Liquidation
Amount to which holders of Series A Preference Stock shall be
entitled after such event shall be the Liquidation Multiple
applicable immediately prior to such event multiplied 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.
(g) Certain Reclassification and Other Events.
(i) In the event that holders of shares of Common
Stock receive after December 22, 1988 in respect of their shares
of Common Stock any share of capital stock of the Company (other
than any share of Common Stock of the Company), whether by way of
reclassification, recapitalization, reorganization, dividend or
other distribution or otherwise ("Transaction"), then in each
such event the dividend rights and rights upon the liquidation,
dissolution or winding up of the Company of the shares of Series
A Preference Stock shall be adjusted so that after such event the
holders of Series A Preference Stock shall be entitled, in
respect of each share of Series A Preference Stock held, in
addition to such rights in respect thereof to which such holder
was entitled immediately prior to such adjustment, to (A) such
additional dividends as equal the Dividend Multiple in effect
immediately prior to such transaction multiplied by the
additional dividends which the holder of a share of Common Stock
shall be entitled to receive by virtue of the receipt in the
Transaction of such capital stock and (B) such additional
distributions upon liquidation, dissolution or winding up of the
Company as equal the Liquidation Multiple in effect immediately
prior to such Transaction multiplied by the additional amount
which the holder of a share of Common Stock shall be entitled to
receive upon liquidation, dissolution or winding up of the
Company by virtue of the receipt in the Transaction of such
capital stock, as the case may be, all as provided by the terms
of such capital stock.
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EXHIBIT 3(ii)
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(ii) In the event that holders of shares of
Common Stock receive after December 22, 1988 in respect of their
shares of Common Stock any right or warrant to purchase Common
Stock (including as such a right, for all purposes of this
paragraph, any security convertible into or exchangeable for
Common Stock) at a purchase price per share less than the Current
Market Price (as hereinafter defined) of a share of Common Stock
on the date of issuance of such right or warrant, then in each
such event the dividend rights and rights upon the liquidation,
dissolution or winding up of the Company of the shares of Series
A Preference Stock shall each be adjusted so that after such
event the Dividend Multiple and the Liquidation Multiple shall
each be the product of the Dividend Multiple and the Liquidation
Multiple, as the case may be, in effect immediately prior to such
event multiplied by a fraction the numerator of which shall be
the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the maximum
number of shares of Common Stock which could be acquired upon
exercise in full of all such rights or warrants and the
denominator of which shall be the number of shares of Common
Stock outstanding immediately before such issuance of rights or
warrants plus the number of shares of Common Stock which could be
purchased, at the Current Market Price of the Common Stock at the
time of such issuance, by the maximum aggregate consideration
payable upon exercise in full of all such rights or warrants.
(iii) In the event that holders of shares of
Common Stock receive after December 22, 1988 in respect of their
shares of Common Stock any right or warrant to purchase capital
stock of the Company (other than shares of Common Stock),
including as such a right, for all purposes of this paragraph,
any security convertible into or exchangeable for capital stock
of the Company (other than Common Stock), at a purchase price per
share less than the Current Market Price of such shares of
capital stock on the date of issuance of such right or warrant,
then in each such event the dividend rights and rights upon
liquidation, dissolution or winding up of the Company of the
shares of Series A Preference Stock shall each be adjusted so
that after such event each holder of a share of Series A
Preference Stock held, in addition to such rights in respect
thereof to which such holder was entitled immediately prior to
such event, to receive (A) such additional dividends as equal the
Dividend Multiple in effect immediately prior to such event
multiplied, first, by the additional dividends to which the
holder of a share of Common Stock shall be entitled upon exercise
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EXHIBIT 3(ii)
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of such right or warrant by virtue of the capital stock which
could be acquired upon such exercise and multiplied again by the
Discount Fraction (as hereinafter defined) and (B) such
additional distributions upon liquidation, dissolution or winding
up of the Company as equal the Liquidation Multiple in effect
immediately prior to such event multiplied, first, by the
additional amount which the holder of a share of Common Stock
shall be entitled to receive upon liquidation, dissolution or
winding up of the Company upon exercise of such right or warrant
by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction. For
purposes of this paragraph, the "Discount Fraction" shall be a
fraction the numerator of which shall be the difference between
the Current Market Price (as hereinafter defined) of a share of
the capital stock subject to a right or warrant distributed to
holders of shares of Common Stock as contemplated by this
paragraph immediately after the distribution thereof and the
purchase price per share for such share of capital stock pursuant
to such right or warrant and the denominator of which shall be
the Current Market Price of a share of such capital stock
immediately after the distribution of such right or warrant.
(iv) For purposes of this paragraph (g), the
"Current Market Price" of a share of capital stock of the Company
(including a share of Common Stock) on any date shall be deemed
to be the average of the daily closing prices per share thereof
over the 30 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, provided that in the
event that such Current Market Price of any such share of capital
stock is determined during a period which includes any date that
is within 30 Trading Days after the ex-dividend date for (A) a
dividend or distribution on stock payable in shares of such stock
or securities convertible into shares of such stock or (B) any
subdivision, split, combination, consolidation, reverse stock
split or reclassification of such stock, then in each such event,
the Current Market Price shall be appropriately adjusted by the
Board of Directors to reflect the Current Market Price of such
stock to take into account ex-dividend trading. The closing
price for any day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading
on the New York Stock Exchange, or, if the shares are not listed
or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
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EXHIBIT 3(ii)
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system with respect to securities listed on the principal
national securities exchange on which the shares are listed or
admitted to trading or, if the shares are not listed or admitted
to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or
if on any such date the shares are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
shares selected by the Board of Directors. The term "Trading
Day" shall mean a day on which the principal national securities
exchange on which the shares are listed or admitted to trading is
open for the transaction of business or, if the shares are not
listed or admitted to trading on any national securities
exchange, on which the New York Stock Exchange or such other
national securities exchange as may be selected by the Board of
Directors is open. If the shares are not publicly held or not so
listed or traded on any day within the period of 30 Trading Days
applicable to the determination of Current Market Price thereof
as aforesaid, "Current Market Price" shall mean the fair market
value thereof per share as determined in good faith by the Board
of Directors. In either case referred to in the foregoing
sentence, the determination of Current Market Price shall be
described in a statement filed with the Secretary of the Company.
(h) Consolidation, Merger, etc. In the event that the
Company shall enter into any consolidation, merger, combination
or other transaction in which shares of Common Stock are
exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such event each
outstanding share of Series A Preference Stock shall at the same
time be similarly exchanged for or changed into the aggregate
amount of stock, securities, cash and other property (payable in
like kind), as the case may be, for which or into which each
share of Common Stock is changed or exchanged multiplied by the
higher of the Dividend Multiple or the Liquidation Multiple in
effect immediately prior to such event.
(i) Effective Time of Adjustments.
(i) Adjustments to the Series A Preference Stock
required by the provisions hereof shall be effective as of the
time at which the event requiring such adjustments occurs.
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EXHIBIT 3(ii)
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(ii) The Company shall give prompt written notice
to each holder of a share of Series A Preference Stock of the
effect on any such shares of any adjustment to the dividend
rights or rights upon liquidation, dissolution or winding up of
the Company required by the provisions hereof. Notwithstanding
the foregoing sentence, the failure of the Company to give such
notice shall not affect the validity of or the force or effect of
or the requirement for such adjustment.
(j) No Redemption. The shares of Series A Preference
Stock shall not be redeemable at the option of the Company or any
holder thereof. Notwithstanding the foregoing sentence of this
paragraph, the Company may acquire shares of Series A Preference
Stock in any other manner permitted by law and the provisions of
the certificate of incorporation.
(k) Ranking. Unless otherwise provided in the
certificate of incorporation or a certificate of amendment of the
certificate of incorporation relating to a subsequent series of
Preference Stock of the Company, the Series A Preference Stock
shall rank junior to all other series of the Company's Preference
Stock as to the payment of dividends and the distribution of
assets on liquidation, dissolution or winding up and senior to
the Common Stock of the certificate of incorporation.
(l) Amendment. After the Distribution Date (as
defined in the Rights Agreement), the provisions of the
certificate of incorporation shall not be amended in any manner
which would materially affect the rights, privileges or powers of
the Series A Preference Stock without, in addition to any other
vote of stockholders required by law, the affirmative vote of the
holders of not less than two-thirds of the outstanding shares of
Series A Preference Stock, voting together as a single class.
(m) Fractional Shares. Series A Preference Stock may
be issued in fractions of a share which 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
A Preference Stock.
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EXHIBIT 3(ii)
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B. COMMON STOCK:
(1) Dividends. Subject to the provisions of Section A of
this Article Fourth, the Board of Directors may, in its
discretion, out of funds legally available for the payment of
dividends and at such times and in such manner as determined by
the Board of Directors, declare and pay dividends on the Common
Stock.
(2) Liquidation, Dissolution and Winding Up. In the event
of any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, after payment in full has been
made to the holders of the Preference Stock of the amounts to
which they are respectively entitled or sufficient sums have been
set apart for the payment thereof, the holders of the Common
Stock shall be entitled to receive ratably any and all assets
remaining to be paid or distributed, and the holders of the
Preference Stock shall not be entitled to share therein.
(3) Voting. Except as otherwise expressly provided in the
Company's certificate of incorporation, as amended, or as may be
required by law, the holders of the Common Stock of the Company
shall be entitled at all meetings of stockholders to one vote for
each share of such stock held by them respectively and shall vote
together with the holders of the Preference Stock as one class.
At all elections of directors each holder of Common Stock shall
be entitled to as many votes as shall equal the number of votes
which such holder would be entitled to cast, multiplied by the
number of directors to be elected, and no such holder may cast
all such votes for a single director, or may distribute them
among the number to be voted for or any two or more of them as
such holder may see fit.
(4) Preemptive Rights. No holder of shares of Common Stock
shall, as such, have any preemptive or preferential rights to
subscribe to or purchase any shares of any class or series of
stock of the Company, now or hereafter authorized, or any series
convertible into, or warrants or other evidences of optional
rights to purchase or subscribe to, shares of any class or series
of the Company, now or hereafter authorized.
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EXHIBIT 3(ii)
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C. QUORUM:
A quorum for the election of directors or for the
consideration of any question shall consist of a majority of the
voting power of the stock issued and outstanding and entitled to
vote for the election of directors or upon such question,
respectively; except that where a vote of a particular class of
stock or of a particular series of a class is required, a quorum
shall consist of a majority of the voting power of the stock
issued and outstanding of each class or series so entitled to
vote separately, and except that if several classes are entitled
to vote together as a single class, a quorum shall consist of a
majority of the voting power of the stock of all such classes
issued and outstanding; provided, however, that any meeting may
be adjourned by a majority of the votes properly cast, whether or
not a quorum is present.
D. VOTING REQUIREMENTS:
(1) Majority Voting Requirements. Subject to the
provisions of paragraph (2) of this Section D and except as
otherwise expressly provided in the Company's certificate of
incorporation, as amended, or as may be required by law, the
majority voting requirements prescribed in subsections 14A:10-
3(2) and 14A:12-4(4) and in paragraphs 14A:9-2(4)(c) and 14A:10-
11(1)(c) of the New Jersey Business Corporation Act shall apply
to the Company.
(2) Greater Voting Requirements. The affirmative vote of
the holders of four-fifths of the outstanding shares of all
classes of stock of the Company entitled to vote, considered for
the purposes of this paragraph (2) as one class, shall be
required to authorize
(i) the merger or consolidation of the Company or a
subsidiary of the Company with or into any other corporation,
person or other entity, (ii) any sale, lease, exchange or other
disposition of all or any material part of the assets of the
Company or of any subsidiary of the Company to or with any other
corporation, person or other entity or (iii) any issuance or
transfer of securities of the Company upon conversion of or in
exchange for the securities or assets of any other corporation,
person or entity if (as of the date of any action taken by the
Board of Directors with respect to such transaction or as of any
record date for the determination of stockholders entitled to
notice and to vote with respect thereto or immediately prior to
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EXHIBIT 3(ii)
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the consummation of such transaction) such other corporation,
person or other entity referred to in clause (i), clause (ii) or
clause (iii) above is the beneficial owner, directly or
indirectly, of more than 10% of any class of capital stock of the
Company. For the purposes hereof any corporation, person or
other entity shall be deemed to be the beneficial owner of any
shares of capital stock of the Company, (x) which it has the
right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, or (y)
which are beneficially owned, directly or indirectly (including
shares deemed owned through application of clause (x) above) by
any other corporation, person or other entity with which it has
any agreement, arrangement or understanding with respect to the
acquisition, holding, voting or disposition of stock or of any
material part of the assets of the Company or of it, or which is
its "affiliate" or "associate" as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on January 1, 1970. Any
determination made in good faith by the Board of Directors, on
the basis of information at the time available to it, as to
whether any corporation, person or other entity is the beneficial
owner of more than 10% of any class of capital stock of the
Company, or is an "affiliate" or "associate", as above defined,
shall be conclusive and binding for all purposes of this
paragraph (2). The provisions of this paragraph (2) shall not
apply to any agreement for the merger of any subsidiary of the
Company with the Company or with another subsidiary of the
Company where the Company or such other subsidiary shall be the
surviving corporation and where the provisions of this paragraph
(2) shall not be changed or otherwise affected by or by virtue of
the merger.
Fifth. The number of directors constituting the current
Board of Directors of the Company is ten (10). The names and
addresses of the members of said Board are as follows:
Theodore H. Black P.O. Box 8738
Woodcliff Lake, N.J. 07675
Brendan T. Byrne 6 Becker Farm Road
Roseland, N.J. 07068
Joseph P. Flannery 455 Chase Parkway
Waterbury, CT 06708
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EXHIBIT 3(ii)
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Clyde H. Folley P.O. Box 8738
Woodcliff Lake, N.J. 07675
William G. Kuhns 100 Interpace Parkway
Parsippany, N.J. 07054
Alexander H. Massad 1601 Rio Grande
Austin, TX 78701
John E. Phipps P.O. Box 3048
Tallahassee, FL 32315
Donald E. Procknow 18 Saw Mill Road
Saddle River, N.J. 07458
Cedric E. Ritchie 44 King Street West
Toronto, Ontario M5H 1H1
Willis A. Strauss Two Central Park Plaza
222 South 15th Street
Omaha, Nebraska 68102
Sixth. The number of directors of the Company shall be at
no time less than eight, and may be increased or thereafter
decreased as may be provided from time to time in the by-laws.
The Board of Directors shall be divided as equally as may be into
three classes, each of which shall consist of such number as the
by-laws may from time to time provide, but no class shall consist
of less than two members. At the annual election to be held in
1942 the directors of the first class shall be elected for a term
of one year, the directors of the second class shall be elected
for a term of two years, and the directors of the third class
shall be elected for a term of three years. At each annual
election thereafter, the successors of the directors of the class
whose terms expire in that year shall be elected to hold office
for the term of three years, so that the term of office of one
class of directors shall expire in each year. If the number of
directors is changed, any newly created directorships or decrease
in directorships shall be so apportioned among the classes as to
make all classes as nearly equal in number as possible. In case
of any increase in the number of directors of any class or
classes, the additional directors may be elected by the Board of
Directors, but any such director so elected shall hold office
only until the next succeeding annual meeting of stockholders and
until his successor shall have been elected and qualified. No
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EXHIBIT 3(ii)
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decrease in the number of directors shall shorten the term of any
incumbent director. Directors may be removed without cause only
upon the affirmative vote of the holders of at least four-fifths
of the shares of capital stock entitled to vote for the election
of directors. Directors may be removed for cause upon the
affirmative vote of two-thirds of the entire Board. The
affirmative vote of the holders of at least four-fifths of the
shares of capital stock entitled to vote for the election of
directors shall be required for any amendment or deletion of this
paragraph of this Article Sixth, unless such amendment or
deletion shall have been approved by the unanimous vote of the
directors then in office, in which case the majority voting
requirements prescribed in paragraph 14A:9-2(4)(c) of the New
Jersey Business Corporation Act shall apply thereto.
The provisions of this Article Sixth shall have no
application to any directors who may be elected by the holders of
Preference Stock or any series thereof, voting as a class or
series, as the case may be, pursuant to a right to elect
directors conferred upon such holders by reason of default in the
payment of dividends, failure to discharge sinking fund
obligations or otherwise. Any such directors shall be in
addition to the directors to be elected pursuant to the paragraph
immediately above and shall be elected in the manner, and serve
for such term, as may be provided in the certificate of
incorporation, as from time to time amended.
The Board of Directors, by the affirmative vote of a
majority of the entire Board, may appoint from their number an
executive committee of which committee a majority shall
constitute a quorum; and to such extent as shall be provided in
the by-laws and as may be permitted by law, such committee shall
have and may exercise all or any of the powers of the Board of
Directors.
The Board of Directors, by the affirmative vote of a
majority of the whole Board, may appoint any other standing
committees; and such standing committees shall have and may
exercise such powers as may be conferred and authorized by the
by-laws or by the Board of Directors and as may be permitted by
law.
The Board of Directors may appoint, not only other officers
of the Company, but also one or more Vice-Presidents, one or more
Assistant Treasurers, and one or more Assistant Secretaries; and,
to the extent provided in the by-laws, or by the Board of
Directors, the persons so appointed, respectively, shall have and
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EXHIBIT 3(ii)
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may exercise all the powers of the President and of the Treasurer
and of the Secretary respectively.
Subject always to the by-laws made by the stockholders, the
Board of Directors may make by-laws; but any by-laws made by the
Board of Directors may be altered or repealed by the stockholders
at any annual meeting or any special meeting, provided notice of
such proposed alteration or repeal be included in the notice of
the meeting.
The Board of Directors shall have the power, by action which
may be general or confined to specific instances, to authorize
the Company to loan money to, guarantee any obligation of, or
otherwise assist, any officer or other employee or agent of the
Company or of any subsidiary thereof, whenever in the judgement
of the directors such loan, guarantee or assistance may
reasonably be expected to benefit the Company; provided that any
such loan, guarantee or assistance to an officer or employee who
is also a director of the Company shall have been authorized by a
majority of the entire Board of Directors.
Seventh. Limitation of Liability, Indemnification and
Insurance
(a) Limitation of Liability.
To the fullest extent permitted by the laws of the
State of New Jersey, as they exist on the date hereof or may
hereafter be amended, directors and officers of the Company shall
not be personally liable to the Company or its stockholders for
damages for breach of any duty owed to the Company or its
stockholders, except that the provisions of this Article Seventh
shall not relieve a director or officer from liability for any
breach of duty based upon an act or omission (i) in breach of
such person's duty of loyalty to the Company or its stockholders,
(ii) not in good faith or involving a knowing violation of law or
(iii) resulting in receipt by such person of an improper personal
benefit. Neither the amendment or repeal of this Article nor the
adoption of any provision of this Restated Certificate of
Incorporation which is inconsistent with this Article shall
eliminate or reduce the protection afforded by this Article to
any director or officer of the Company for or with respect to any
act or omission of such director or officer occurring prior to
such amendment, repeal, or adoption.
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EXHIBIT 3(ii)
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(b) Indemnification and Insurance.
(1) Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is
involved in any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, or any
appeal therein or any inquiry or investigation which could lead
to such action, suit or proceeding ("proceeding"), by reason of
his or her being or having been a director or officer of the
Company or of any constituent corporation absorbed by the Company
in a consolidation or merger, or by reason of his or her being or
having been a director, officer, trustee, employee or agent of
any other corporation (domestic or foreign) or of any
partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise (whether or not for profit),
serving as such at the request of the Company or of any such
constituent corporation, or the legal representative of any such
director, officer, trustee, employee or agent, shall be
indemnified and held harmless by the Company to the fullest
extent permitted by the New Jersey Business Corporation Act, as
the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights
than said Act permitted prior to such amendment), from and
against any and all reasonable costs, disbursements and
attorneys' fees, and any and all amounts paid or incurred in
satisfaction of settlements, judgments, fines and penalties
incurred or suffered in connection with any such proceeding, and
such indemnification shall continue as to a person who has ceased
to be a director, officer, trustee, employee or agent and shall
inure to the benefit of his or her heirs, executors,
administrators and assigns; provided, however, that there shall
be no indemnification hereunder with respect to any settlement or
other non-adjudicated disposition of any proceeding unless the
Company has given its prior consent to such settlement or
disposition. The right to indemnification conferred in this
Section shall be a contract right and shall include the right to
be paid by the Company the expenses incurred in connection with
any proceeding in advance of the final disposition of such
proceeding as authorized by the Board of Directors; provided,
however, that, if the New Jersey Business Corporation Act so
requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer in
advance of the final disposition of a proceeding shall be made
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EXHIBIT 3(ii)
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only upon receipt by the Company of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced unless it shall ultimately be determined that such
director or officer is entitled to be indemnified under this
Section or otherwise. The Company may, by action of its Board of
Directors, provide for indemnification and advancement of
expenses to employees and agents of the Company with the same
scope and effect as the foregoing indemnification of directors
and officers.
(2) Right of Claimant to Bring Suit. If a claim under
paragraph (1) of this Section (b) is not paid in full by the
Company within thirty days after a written request has been
received by the Company, the claimant may at any time thereafter
apply to a court for an award of indemnification by the Company
for the unpaid amount of the claim and, if successful on the
merits or otherwise in connection with any proceeding, or in the
defense of any claim, issue or matter therein, the claimant shall
be entitled also to be paid by the Company any and all expenses
incurred or suffered in connection with such proceeding. It
shall be a defense to any such action (other than an action
brought to enforce a claim for the advancement of expenses
incurred in connection with any proceeding where the required
undertaking, if any, has been tendered to the Company) that the
claimant has not met the standard of conduct which makes it
permissible under the New Jersey Business Corporation Act for the
Company to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Company. Neither
the failure of the Company (including its Board of Directors,
independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such proceeding that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the New Jersey Business Corporation Act, nor an actual
determination by the Company (including its Board of Directors,
independent legal counsel or its stockholders) that the claimant
has not met such applicable standard of conduct, nor the
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent,
shall be a defense to the action or create a presumption that the
claimant has not me the applicable standard of conduct.
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EXHIBIT 3(ii)
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(3) Non-Exclusivity of Rights. The right to
indemnification and advancement of expenses provided by or
granted pursuant to this Section (b) shall not exclude or be
exclusive of any other rights to which any person may be entitled
under a certificate of incorporation, by-law, agreement, vote of
stockholders, or otherwise, provided that no indemnification
shall be made to or on behalf of any person if a judgement or
other final adjudication adverse to such person establishes that
such person has not met the applicable standard of conduct
required to be met under the New Jersey Business Corporation Act.
(4) Insurance. The Company may purchase and maintain
insurance on behalf of any director, officer, employee or agent
of the Company, another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against any
expenses incurred in any proceeding and any liabilities asserted
against him or her by reason of such person's being or having
been a director, officer, employee or agent, whether or not the
Company would have the power to indemnify such person against
such expenses and liabilities under the provisions of this
Section (b) or otherwise. The Company may purchase such
insurance from, or such insurance may be reinsured in whole or in
part by, an insurer owned or otherwise affiliated with the
Company, whether or not such insurer does business with other
insureds.
IN WITNESS WHEREOF, INGERSOLL-RAND COMPANY has caused
this Restated Certificate of Incorporation to be duly executed
this 3rd day of May , 1991.
INGERSOLL-RAND COMPANY
By /S/ Theodore H. Black
Theodore H. Black
Chairman of the Board
60