EXHIBIT 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
McDONALD'S CORPORATION
(originally incorporated on December 21, 1964
under the name "Regrub, Inc.")
FIRST: The name of the corporation is McDONALD'S CORPORATION.
SECOND: Its registered office in the State of Delaware is
located at 1013 Centre Road, Wilmington, New Castle County, Delaware
19805.
The name and address of its registered agent is The Prentice-
Hall Corporation System, Inc., 1013 Centre Road, Wilmington, New Castle
County, Delaware 19805.
THIRD: The nature of the business of the Corporation and the
objects and purposes to be transacted, promoted or carried on are as
follows:
1. To obtain by license or otherwise and to grant to others
by license or otherwise the right to the use of drive-in food
establishment systems and food service systems of every kind and
character, and to manage and operate drive-in and other restaurants and
eating places of all kinds.
2. To manufacture, construct, lease, purchase and otherwise
acquire; to hold, own, repair, maintain, operate and invest, trade and
deal in; to lien, mortgage, pledge and otherwise encumber, and to let,
assign, transfer, sell and otherwise dispose of goods, wares and
merchandise and personal property of every kind and description and
wherever situated.
3. To the same extent as natural persons might or could do,
to purchase or otherwise acquire, hold, own, maintain, work, develop,
sell, lease, sublease, exchange, hire, convey, mortgage or otherwise
dispose of and turn to account and deal in, lands, leaseholds, any
interests, estates and rights in real property, any personal or mixed
property, and franchises, rights, licenses, permits or privileges of
every character.
4. To acquire by purchase, exchange or otherwise, all, or any
part of, or any interest in, the properties, assets, business and good
will of any one or more persons, firms, associations, corporations or
syndicates engaged in any business which the Corporation is authorized to
engage in; to pay for the same in cash, property or its own or other
securities; to hold, operate, reorganize, liquidate, sell or in any
manner dispose of the whole or any part thereof; and in connection
therewith, to assume or guarantee performance of any liabilities,
obligations or contracts of such persons, firms, associations,
corporations or syndicates, and to conduct in any lawful manner the whole
or any part of any business thus acquired.
5. To acquire by purchase, subscription, contract or
otherwise, and to hold for investment or otherwise, sell, exchange,
mortgage, pledge or otherwise dispose of, or turn to account or realize
upon, and generally to deal in and with, any and all kinds of securities
issued or created by, or interests in, corporations, associations,
partnerships, firms, trustees, syndicates, individuals, municipalities or
other political or governmental divisions or subdivisions, or any
thereof, or by any combinations, organizations or entities whatsoever,
irrespective of their form or the name by which they may be described;
and to exercise any and all rights, powers, and privileges of individual
ownership or interest in respect of any and all such securities and
interests, including the right to vote thereon and to consent and
otherwise act with respect thereto; to do any and all acts and things for
the preservation, protection, improvement and enhancement in value of any
and all such securities or interests, and to aid by loan, subsidy,
guaranty or in any other manner permitted by law those issuing, creating,
or responsible for any such securities or interests.
6. To develop, apply for, obtain, register, purchase, lease,
take licenses in respect of or otherwise acquire, and to hold, own, use,
operate, enjoy, turn to account, grant licenses in respect of,
manufacture under, introduce, sell, assign, mortgage, pledge or otherwise
dispose of any and all inventions, devices, formulae, processes,
improvements and modifications thereof, letters patent and all rights
connected therewith or appertaining thereunto, copyrights, trademarks,
trade names, trade symbols and other indications of origin and ownership,
franchises, licenses, grants and concessions granted by or recognized
under the laws of the United States of America or of any state or
subdivision thereof or of any other country or subdivision thereof.
7. To loan money upon the security of real and/or personal
property of whatsoever name, nature or description, or without security.
8. To borrow money for any of the purposes of the
Corporation, from time to time, and without limit as to amount; to issue
and sell its own securities in such amounts, on such terms and
conditions, for such purposes and for such prices, as the Board of
Directors shall determine; and to secure such securities, by mortgage
upon, or the pledge of, or the conveyance or assignment in trust of, the
whole or any part of the properties, assets, business and good will of
the Corporation, then owned or thereafter acquired.
It is the intention that the objects and purposes set forth in
the foregoing clauses of this Article Third shall not, unless otherwise
specified herein, be in any wise limited or restricted by reference to,
or inference from, the terms of any other clause of this or any other
article in this Certificate, but that the objects and purposes specified
in each of said clauses shall be regarded as independent objects and
purposes.
It is also the intention that the foregoing clauses shall be
construed as powers as well as objects and purposes; that the Corporation
shall be authorized to conduct its business or hold property in any part
of the United States and its possessions, and foreign countries; that the
foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Corporation; and that
generally the Corporation shall be authorized to exercise and enjoy all
other powers conferred on corporations by the laws of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Three Billion Six Hundred
Sixty-Five Million (3,665,000,000), consisting of Three Billion Five
Hundred Million (3,500,000,000) shares of Common Stock with one cent
($.01) par value and One Hundred Sixty-Five Million (165,000,000) shares
of Preferred Stock without par value.
A. COMMON STOCK
Each share of Common Stock shall be equal to every other share
of Common Stock in every respect. Subject to any exclusive voting rights
which may vest in holders of Preferred Stock under the provisions of any
series of the Preferred Stock established by the Board of Directors
pursuant to authority herein provided, the shares of Common Stock shall
entitle the holders thereof to one vote for each share upon all matters
upon which stockholders have the right to vote.
B. PREFERRED STOCK
(1) Preferred Stock may be issued from time to time in one or
more series, each of such series to have such designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated and
expressed in this Article and in the resolution or resolutions providing
for the issuance of such series adopted by the Board of Directors as
hereinafter provided.
(2) Authority is hereby expressly granted to the Board of
Directors subject to the provisions of this Article to authorize the
issuance of one or more series of Preferred Stock and, with respect to
each series, to fix by resolution or resolutions providing for the
issuance of such series:
(a) The number of shares to constitute such series and
the distinctive designations thereof;
(b) The dividend rate or rates to which such shares shall
be entitled and the restrictions, limitations and conditions upon the
payment of such dividends, whether dividends shall be cumulative or non-
cumulative and, if cumulative, the date or dates from which dividends
shall accumulate, the dates on which dividends, if declared, shall be
payable, and the preferences or relations to the dividends payable on any
other series of Preferred Stock;
(c) Whether or not all or any part of the shares of such
series shall be redeemable, and if so, the limitations and restrictions
with respect to such redemptions, the manner of selecting shares of such
series for redemption if less than all shares are to be redeemed, and the
amount, if any, in addition to any accrued dividends thereon, which the
holder of shares of such series shall be entitled to receive upon the
redemption thereof, which amount may vary at different redemption dates
and may be different with respect to shares redeemed through the
operation of any retirement or sinking fund and with respect to shares
otherwise redeemed;
(d) The amount in addition to any accrued dividends
thereon which the holders of shares of such series shall be entitled to
receive upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, which amount may vary depending on whether
such liquidation, dissolution or winding up is voluntary or involuntary
and, if voluntary, may vary at different dates;
(e) Whether or not the shares of such series shall be
subject to the operation of a purchase, retirement or sinking fund, and,
if so, whether such purchase, retirement or sinking fund shall be
cumulative or non-cumulative, the extent and the manner in which such
fund shall be applied to the purchase or redemption of the shares of such
series for retirement or to other corporate purposes and the terms and
provisions relative to the operation thereof;
(f) Whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other class
or classes, or of any other series of the same class, and if so
convertible or exchangeable, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same;
(g) The voting powers, if any, of such series in addition
to the voting powers provided by law; except that such powers shall not
include the right to have more than one vote per share;
(h) Any other preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof as shall not be inconsistent with law or with this
Article.
Notwithstanding the fixing of the number of shares constituting
a particular series upon the issuance thereof, the Board of Directors may
at any time thereafter authorize the issuance of additional shares of the
same series, or decrease the number of shares constituting such series
(but not below the number of shares of such series then outstanding).
(3) All shares of any one series of Preferred Stock shall be
identical with all other shares of the same series except that shares of
any one series issued at different times may differ as to the dates from
which dividends thereon shall be cumulative; and all series shall rank
equally and be identical in all respects, except as permitted by the
foregoing provisions of paragraph B. (2).
(4) (a) The holders of Preferred Stock shall be entitled to
receive cash dividends when and as declared by the Board of Directors at
such rate per share per annum, cumulatively if so provided, and with such
preferences, as shall have been fixed by the Board of Directors, before
any dividends shall be paid upon or declared and set apart for the Common
Stock or any other class of stock ranking junior to the Preferred Stock,
and such dividends on each series of the Preferred Stock shall cumulate,
if at all, from and after the dates fixed by the Board of Directors with
respect to such cumulation. Accrued dividends shall bear no interest.
(b) If dividends on the Preferred Stock are not declared
in full then dividends shall be declared ratably on all shares of stock
of each series of equal preference in proportion to the respective unpaid
cumulative dividends, if any, to the end of the then current dividend
period. No ratable distribution shall be declared or set apart for
payment with respect to any series until accumulated dividends in arrears
in full have been declared and paid on any series senior in preference.
(c) Unless dividends on all outstanding shares of series
of the Preferred Stock having cumulative dividend rights shall have been
fully paid for all past dividend periods, and unless all required sinking
fund payments, if any, shall have been made or provided for, no dividend
(except a dividend payable in Common Stock or in any other class of stock
ranking junior to the Preferred Stock) shall be paid upon or declared and
set apart for the Common Stock or any other class of stock ranking junior
to the Preferred Stock.
(d) Subject to the foregoing provisions, the Board of
Directors may declare and pay dividends on the Common Stock and on any
class of stock ranking junior to the Preferred Stock, to the extent
permitted by law. After full dividends for the current dividend period,
and, in the case of Preferred Stock having cumulative dividend rights
after all prior dividends have been paid or declared and set apart for
payment, the holders of the Common Stock shall be entitled, to the
exclusion of the holders of the Preferred Stock, to all further dividends
declared and paid in such current dividend period.
(5) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment
or distribution of the assets of the Corporation shall be made to or set
apart for the holders of shares of any class or classes of stock of the
Corporation ranking junior to the Preferred Stock, the holders of the
shares of each series of the Preferred Stock shall be entitled to receive
payment of the amount per share fixed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of the
shares of such series, plus an amount equal to all dividends accrued
thereon to the date of final distribution to such holders; but they shall
be entitled to no further payment. If, upon any liquidation, dissolution
or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of the shares of the
Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective
amount which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes of this paragraph B. (5),
the sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Corporation or a consolidation or merger of the
Corporation with one or more corporations shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary.
(6) Shares of any series of Preferred Stock which have been
issued and reacquired in any manner by the Company (excluding shares
purchased and retired, whether through the operation of a retirement or
sinking fund or otherwise, and shares which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock
of any other class or classes) shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as a part of the
series of which they were originally a part or may be reclassified and
reissued as part of a new series of Preferred Stock or as part of any
other series of Preferred Stock, all subject to the conditions or
restrictions on issuance fixed by the Board of Directors with respect to
the shares of any other series of Preferred Stock.
(7) Except as otherwise specifically provided herein or in the
authorizing resolutions, none of the shares of any series of Preferred
Stock shall be entitled to any voting rights and the Common Stock shall
have the exclusive right to vote for the election of directors and for
all other purposes. So long as any shares of any series of Preferred
Stock are outstanding, the Corporation shall not, without the consent of
the holders of a majority of the then outstanding shares of Preferred
Stock, irrespective of series, either expressed in writing (to the extent
permitted by law) or by their affirmative vote at a meeting called for
that purpose: (i) adopt any amendment to this Restated Certificate of
Incorporation or take any other action which in any material respect
adversely affects any preference, power, special right, or other term of
the Preferred Stock or the holders thereof, (ii) create or issue any
class of stock entitled to any preference over the Preferred Stock as to
the payment of dividends, or the distribution of capital assets, (iii)
increase the aggregate number of shares constituting the authorized
Preferred Stock or (iv) create or issue any other class of stock entitled
to any preference on a parity with the Preferred Stock as to the payment
of dividends or the distribution of capital assets.
(8) If in any case the amounts payable with respect to any
obligations to retire shares of the Preferred Stock are not paid in full
in the case of all series with respect to which such obligations exist,
the number of shares of each of such series to be retired pursuant to any
such obligations shall be in proportion to the respective amounts which
would be payable on account of such obligations if all amounts payable in
respect of such series were discharged in full.
(9) The shares of Preferred Stock may be issued by the
Corporation from time to time for such consideration as may be fixed from
time to time by the Board of Directors. Any and all shares for which the
consideration so fixed shall have been paid or delivered shall be deemed
fully paid and nonassessable.
(10) For the purpose of the provisions of this Article dealing
with Preferred Stock or of any resolution of the Board of Directors
providing for the issuance of any series of Preferred Stock or of any
certificate filed with the Secretary of State of the State of Delaware
pursuant to any such resolution (unless otherwise provided in any such
resolution or certificate):
(a) The term "outstanding", when used in reference to
shares of stock, shall mean issued shares, excluding shares held by the
Corporation and shares called for redemption, funds for the redemption of
which shall have been set aside or deposited in trust;
(b) The amount of dividends "accrued" on any share of
Preferred Stock as at any dividend date shall be deemed to be the amount
of any unpaid dividends accumulated thereon to and including such
dividend date, whether or not earned or declared, and the amount of
dividends "accrued" on any share of Preferred Stock as at any date other
than a dividend date shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the last preceding
dividend date, whether or not earned or declared, plus an amount
equivalent to interest on the involuntary liquidation value of such share
at the annual dividend rate fixed for the shares of such series for the
period after such last preceding dividend date to and including the date
as of which the calculation is made;
(c) The term "class or classes of stock of the corpora-
tion ranking junior to the Preferred Stock" shall mean the Common Stock
of the Corporation and any other class or classes of stock of the
Corporation hereafter authorized which shall rank junior to the Preferred
Stock as to dividends or upon liquidation.
C. PROVISIONS APPLICABLE TO ALL CAPITAL STOCK
No holder of any share or shares of any class of stock of the
Corporation shall have any preemptive or preferential right to subscribe
for or purchase any shares of stock of any class of the Corporation now
or hereafter authorized or any securities convertible into or carrying
any rights to purchase any shares of stock of any class of the
Corporation now or hereafter authorized, other than such rights, if any,
as the Board of Directors in its discretion from time to time may grant,
and at such prices and upon such other terms and conditions as the Board
of Directors in its discretion may fix.
D. SERIES OF PREFERRED STOCK
Following are the statements of the designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations and restrictions thereof, of the series of
Preferred Stock that have been designated by the Board of Directors as
authorized herein:
1. Series A Junior Participating Preferred Stock.
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation (hereinafter called the
"Board of Directors" or the "Board") in accordance with the provisions of
the Restated Certificate of Incorporation, the Board of Directors hereby
creates a series of Preferred Stock, without par value (the "Preferred
Stock"), of the Corporation and hereby states the designation and number
of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock"
(the "Series A Preferred Stock") and the number of shares constituting
the Series A Preferred Stock shall be 2,050,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock, without par value (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock,
in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common
Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred
Stock. In the event the Corporation 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 or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares,
or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation 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 or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event,
provided that in no event shall a share of Series A Preferred Stock be
entitled to more than one vote.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking on
a parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the Restated
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have received $100
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the
event the Corporation 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 or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an amount
per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the
event the Corporation 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 or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares
of Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Corporation's Preferred
Stock.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a
single class.
2. Series D Preferred Stock.
FURTHER RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter called
the "Board of Directors" or the "Board") in accordance with the
provisions of the Restated Certificate of Incorporation, the Board of
Directors hereby creates a series of Preferred Stock, without par value
(the "Preferred Stock"), of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights,
preferences and limitations thereof as follows:
Series D Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as Series D Preferred Stock (the "Series D Preferred
Stock") and the number of shares constituting the Series D Preferred
Stock shall be three hundred thousand (300,000). Shares of Series D
Preferred Stock shall have a stated value of $100 per share. 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 D Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants issued by or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series D Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series D Preferred Stock with respect to dividends, the
holders of shares of Series D Preferred Stock, in preference to the
holders of Common Stock and of any other Junior Stock (as hereinafter
defined in Section 4(B)), shall be entitled to receive a cash dividend
payable in an amount per share equal to $1.25 per quarter and no more
(such amount being referred to herein as the "Dividend Amount"), which
dividend shall be payable when and as declared by the Board of Directors,
out of funds legally available for the purpose, payable quarterly in
arrears on the first day of March, June, September and December in each
year (each such date being referred to herein as "Dividend Payment
Date"), subject to Section 2(B) below, commencing on the first Dividend
Payment Date after the first issuance of a share of Series D Preferred
Stock. In the event that any Dividend Payment Date shall occur on any
day other than a "Business Day" (as hereinafter defined), the dividend
payment due on such Dividend Payment Date shall be paid on the Business
Day immediately preceding such Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders of
shares of Series D Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof. For
purposes of these resolutions, "Business Day" shall mean each day that is
not a Saturday, Sunday or a date on which federally or state chartered
banking institutions in Chicago, Illinois or New York, New York are
required or authorized to be closed.
(B) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Preferred Stock from the date of issue of
such shares and shall accrue on a daily basis whether or not declared and
whether or not the Corporation shall have earnings or surplus out of
which such dividends could be paid at the time. Dividends accrued on the
shares of Series D Preferred Stock for any period less than a full
quarterly period between Dividend Payment Dates shall be computed on the
basis of a 360-day year of 30-day months and in lieu of the initial
quarterly dividend, such a proportional dividend shall accrue for the
period from the date of issue until the first Dividend Payment Date after
the issuance of any such shares. Accrued but unpaid dividends shall not
bear interest. Accumulated but unpaid dividends shall cumulate as of the
Dividend Payment Date on which they first become payable, but no interest
shall accrue on accumulated but unpaid dividends.
(C) Dividends paid on the shares of Series D Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
Section 3. Voting Rights. The holders of shares of Series D
Preferred Stock shall have the following voting rights:
(A) Each share of Series D Preferred Stock shall entitle the
holder thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation.
(B) Except as otherwise provided by law or in the Restated
Certificate of Incorporation, the holders of shares of Series D Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by
law or in the Restated Certificate of Incorporation, holders of Series D
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of Common stock as set forth herein) for taking any
corporate action. Any increase or decrease in the authorized class of
Preferred Stock shall not be deemed to alter or change the powers,
preferences, or special rights of the shares of Series D Preferred Stock
so as to affect them adversely within the meaning of the General
Corporation Law of the State of Delaware and no class vote shall be
required to authorize such increase or decrease.
Section 4. Certain Restrictions.
(A) So long as any Series D Preferred Stock shall be
outstanding, no dividend shall be declared and paid or set apart for
payment on any other series of stock ranking on a parity with the Series
D Preferred Stock as to dividends ("Parity Stock"), unless there shall
also be or have been declared and paid or set apart for payment on the
Series D Preferred Stock dividends for all dividend payment periods of
the Series D Preferred Stock ending on or before the dividend payment
date of such Parity Stock, ratably in proportion to the respective
amounts of dividends on the Series D Preferred Stock accumulated and
unpaid through the most recent such dividend payment period, and
accumulated and unpaid on such Parity Stock through the dividend payment
period on such Parity Stock ending on such dividend payment date or such
dividend payment date immediately preceding such dividend payment period.
(B) So long as any Series D Preferred Stock shall be
outstanding, in the event that full cumulative dividends on the Series D
Preferred Stock have not been declared and paid or set apart for payment,
the Corporation shall not declare and pay or set apart for payment any
dividends or make any other distributions on, or make any payment on
account of the purchase, redemption or other retirement of, Common Stock
or any other class of stock or series thereof of the Corporation ranking,
as to dividends or as to distributions in the event of a liquidation,
dissolution or winding up of the Corporation, junior to the Series D
Preferred Stock (collectively, "Junior Stock") until full cumulative and
unpaid dividends on the Series D Preferred Stock shall have been paid or
declared and set apart for payment; provided, however, that the foregoing
shall not apply to (i) any dividend payable solely in any shares of
Junior Stock, or (ii) the acquisition of shares of Junior Stock either
(x) pursuant to any employee or director incentive or benefit plan or
arrangement of the Corporation or any subsidiary of the Corporation
heretofore or hereafter adopted or (y) in exchange solely for shares of
any other Junior Stock. Subject to the foregoing provisions of this
Section 4, the Board of Directors may declare and the Corporation may pay
or set apart for payment dividends and other distributions on any Junior
Stock or Parity Stock; and may purchase or otherwise redeem or retire any
of the Junior Stock or Parity Stock or any warrants, rights, or options
or other securities exercisable for or convertible into any of the Junior
Stock or Parity Stock and the holders of shares of the Series D Preferred
Stock shall not be entitled to share therein.
Section 5. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares
of Junior Stock unless, prior thereto, the holders of shares of Series D
Preferred Stock shall have received $100 per share (such amount being
referred to herein as the "Liquidation Preference"), plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, as to the date of such payment, or (ii) to the holders of
shares of Parity Stock, except distributions made ratably on the Series D
Preferred Stock and all such Parity Stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. After payment of the full amount
to which they are entitled as provided by the foregoing provisions of
this Section 5(A), the holders of shares of Series D Preferred Stock
shall not be entitled to any further right or claim to any of the
remaining assets of the Corporation.
(B) Neither the merger or consolidation of the Corporation
with or into any other corporation or other entity, nor the merger or
consolidation of any other corporation or other entity with or into the
Corporation, nor the sale, transfer or lease of all or any portion of the
assets of the Corporation, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this Section
5.
(C) Written notice of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, stating the
payment date or dates when, and the place or places where, the amounts
distributable to holders of Series D Preferred Stock in such
circumstances shall be payable, shall be made in accordance with Section
8 below not less than 20 days prior to any payment date stated therein,
to the holders of Series D Preferred Stock, at their respective addresses
shown on the books of the Corporation or any transfer agent for the
Series D Preferred Stock; provided, however, that a failure to give
notice as provided herein or any defect therein shall not affect the
Corporation's ability to consummate a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
All of the outstanding Series D Preferred Stock shall be
redeemed, by the Corporation, out of funds legally available therefor, on
the later of (i) February 1, 1997 and (ii) the death of Maurice J.
Sullivan, an individual residing in the State of Hawaii, to whom the
initial shares of Series D Preferred Stock will initially be issued (the
"Redemption Date"). The shares shall be redeemed at a price of $100 per
share, plus an amount equal to accrued and unpaid dividends thereon, to
the Redemption Date (the "Redemption Price"). On or subsequent to the
Redemption Date, upon surrender of the certificates for any shares to be
redeemed pursuant to the provisions of this Section 6, the Redemption
Price of such shares shall be paid in cash. In the event that the
Redemption Price is either paid or made available for payment, then,
notwithstanding that the certificate or certificates evidencing any of
the shares of the Series D Preferred Stock shall not have been
surrendered, all rights with respect to such shares shall terminate,
effective on the Redemption Date, and any such certificate shall
represent only the right to receive the Redemption Price, without
interest, upon surrender. No interest shall accrue on the Redemption
Price after the Redemption Date.
Section 7. Reacquired Shares. Any shares of Series D
Preferred Stock acquired by the Corporation by reason of the redemption
of such shares as provided hereby, or otherwise so acquired, shall be
retired and the Corporation shall take all actions necessary to restore
such shares to the status of authorized but unissued shares of Preferred
Stock, without par value, of the Corporation, which shares may thereafter
be reissued as part of a new series of such Preferred Stock or as Series
D Preferred Stock, as permitted by law.
Section 8. Miscellaneous.
(A) All notices referred to herein shall be in writing, and
delivered personally, sent by courier, or by registered or certified mail
(postage prepaid, return receipt requested) addressed: (i) if to the
Corporation, to its office at McDonald's Plaza, Oak Brook, Illinois 60521
(Attention: Secretary) or to the transfer agent designated by the
Corporation or (ii) if to any holder of the Series D Preferred Stock, to
such holder at the address of such holder as listed in the stock records
books of the Corporation (which may include the records of any transfer
agent for the Series D Preferred Stock or Common Stock, as the case may
be) or (iii) to such other address as the Corporation or any such holder,
as the case may be, shall have designated by notice similarly given.
(B) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery or shares of Series D Preferred Stock or certificates
representing such shares. The Corporation shall not, however, be
required to pay any such tax which may be payable in respect of any
transfer involved in the issuance or delivery of shares of Series D
Preferred Stock in a name other than the name in which the shares of
Series D Preferred Stock with respect to which such shares are issued or
delivered were registered, or in respect of any payment to any person
with respect to any such shares other than a payment to the registered
holder thereof, and shall not be required to make any such issuance,
delivery or payment unless and until the person otherwise entitled to
such issuance, delivery or payment has paid to the Corporation the amount
of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid or is not payable.
(C) Unless otherwise provided in the Certificate of
Designations as the same may be amended, all payments in the form of
dividends, distributions on voluntary or involuntary dissolution,
liquidation or winding-up otherwise made upon the shares of Series D
Preferred Stock and any other stock ranking on a parity with the Series D
Preferred Stock with respect to such dividend or distribution shall be
made pro rata, so that amounts paid per share on the Series D Preferred
Stock and such other stock shall in all cases bear to each other the same
ratio that the required dividends, distributions or payments, as the case
may be, then payable per share on the shares of the Series D Preferred
Stock and such other stock bear to each other.
(D) The Corporation may appoint and from time to time
discharge and change, a transfer agent for the Series D Preferred Stock.
Upon any such appointment or discharge of a transfer agent, the
Corporation shall send notice thereof in accordance with Section 8(A) to
each holder of record of Series D Preferred Stock.
FIFTH: The minimum amount of capital with which the
Corporation will commence business is One Thousand Dollars ($1,000).
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders of the
Corporation shall not be subject to the payment of corporate debts to any
extent whatsoever.
EIGHTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware the Board of Directors is
expressly authorized and empowered:
(a) In the manner provided in the by-laws of the Corporation
to make, alter, amend and repeal the by-laws of the Corporation in any
respect not inconsistent with the laws of the State of Delaware or with
the Restated Certificate of Incorporation of the Corporation;
(b) By a resolution or resolutions passed by a majority of the
whole Board, to designate one or more committees, each committee to
consist of two or more of the directors of the Corporation which, to the
extent provided in said resolution or resolutions or in the by-laws of
the Corporation, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the Corporation
to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in the by-laws
of the Corporation or as may be determined from time to time by
resolution adopted by the Board of Directors;
(c) Subject to any applicable provisions of the by-laws of the
Corporation then in effect, to determine from time to time, whether and
to what extent and at what times and places and under what conditions and
regulations the accounts and books of the Corporation, or any of them,
shall be open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account or book or document of the
Corporation, except as conferred by the laws of the State of Delaware,
unless and until authorized so to do by resolution of the Board of
Directors or of the stockholders of the Corporation;
(d) To fix from time to time the amount of the surplus or
profits of the Corporation to be reserved as working capital or for any
other lawful purpose;
(e) Without any action by the stockholders, to authorize the
borrowing of moneys for any of the purposes of the Corporation and, from
time to time without limit as to amount, to authorize and cause the
making, execution, issuance, sale or other disposition of promissory
notes, drafts, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and the securing of the same
by mortgage, pledge, deed of trust or otherwise.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon it, the Board of Directors may exercise
all such powers and do all such acts and things as may be exercised, or
done by the Corporation, subject, nevertheless, to the provisions of the
laws of the State of Delaware, this Restated Certificate of Incorporation
and the by-laws of the Corporation.
Any contract, transaction or act of the Corporation or of the
directors or of any committee, which shall be ratified by the holders of
a majority of the shares of stock of the Corporation present in person or
by proxy and voting at any annual meeting, or at any special meeting
called for such purpose, shall, insofar as permitted by law or by this
Restated Certificate of Incorporation, be as valid and as binding as
though ratified by every stockholder of the Corporation.
The Corporation may enter into contracts or transact business
with one or more of its directors, or with any firm of which one or more
of its directors are members or with any trust, firm, corporation or
association in which any one or more of its directors is a stockholder,
director or officer or otherwise interested, and any such contract or
transaction shall not be invalidated in the absence of fraud because such
director or directors have or may have interests therein which are or
might be adverse to the interest of the Corporation, even though the
presence and/or vote of the director or directors having such adverse
interest shall have been necessary to constitute a quorum and/or to
obligate the Corporation upon such contract or transaction, provided that
such interests shall have been disclosed to the other directors and a
majority of the directors voting shall have approved such contract or
transaction; and no director having such adverse interest shall be liable
to this Corporation or to any stockholder or creditor thereof, or to any
other person for any loss incurred by it under or by reason of any such
contract or transaction; nor shall any such director or directors be
accountable for any gains or profits realized thereon.
The Corporation shall have power to indemnify any and all of
its directors or officers or former directors or officers or any person
who may have served at its request as a director or officer of another
corporation in which it owns shares of capital stock or of which it is a
creditor against liabilities and expenses actually and necessarily
incurred by them in connection with the defense of any action, suit or
proceeding in which they, or any of them, are made parties, or a party,
by reason of being or having been directors or officers or a director or
officer of the Corporation, or of such other corporation, except in
relation to matters as to which any such director or officer or former
director or officer or person shall be adjudged in such action, suit or
proceeding to be liable for negligence or misconduct in the performance
of duty. Such indemnification shall not be deemed exclusive of any other
rights to which those indemnified may be entitled, under any by-law,
agreement, vote of stockholders or otherwise.
NINTH: 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 the laws of the State of Delaware) 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.
TENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate of
Incorporation, to the extent and in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein
are granted subject to this reservation.
ELEVENTH: It is hereby declared to be a proper corporate
purpose, reasonably calculated to benefit stockholders, for the Board of
Directors to base the response of the Corporation to any 'Acquisition
Proposal' on the Board of Directors' evaluation of what is in the best
interests of the Corporation and for the Board of Directors, in
evaluating what is in the best interests of the Corporation, to consider:
(i) the best interest of the stockholders; for this purpose
the Board shall consider, among other factors, not only the consideration
being offered in the Acquisition Proposal, in relation to the then
current market price, but also in relation to the then current value of
the Corporation in a freely negotiated transaction and in relation to the
Board of Directors' then estimate of the future value of the Corporation
as an independent entity; and
(ii) such other factors as the Board of Directors determines to
be relevant, including, among other factors, the social, legal and
economic effects upon franchisees, employees, suppliers, customers and
business.
"Acquisition Proposal" means any proposal of any person (a) for
a tender offer or exchange offer for any equity security of the
Corporation, (b) to merge or consolidate the Corporation with another
corporation, or (c) to purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation.
TWELFTH: Subject to all other applicable provisions of this
Restated Certificate of Incorporation and to all applicable provisions of
the law of Delaware, relating, inter alia, to stockholder approval, the
Board of Directors shall have the power to merge or consolidate the
Corporation with another corporation or to sell, lease or exchange all or
substantially all of the property and assets of the Corporation,
including its good will and its corporate franchises, upon such terms and
conditions and for such consideration, which may be in whole or in part
shares of stock in, and/or other securities of, any corporation or
corporations, as the Board of Directors shall deem expedient and for the
best interests of the Corporation, but, regardless of any other provision
of this Restated Certificate of Incorporation, if any party to any such
transaction shall be a person or entity owning, immediately prior to the
consummation of such transaction, of record or beneficially, 2% or more
of the stock of the Corporation issued and outstanding having voting
power, such power of the Board of Directors shall be exercisable only
when and as duly authorized by the affirmative vote of the holders of not
less than 66-2/3% of the stock of the Corporation issued and outstanding
having voting power given at a stockholders' meeting duly called for that
purpose; provided, however, that the Board of Directors shall have the
power to merge the Corporation with another corporation without action by
the stockholders to the extent and in the manner permitted from time to
time by the law of Delaware. In determining whether or not any person or
entity (the 'Primary Holder') owns, of record or beneficially, 2% or more
of the stock of the Corporation issued and outstanding having voting
power, there shall be aggregated with all shares of such stock owned of
record or beneficially by the Primary Holder (a) all shares of such stock
owned of record or beneficially by any person or entity who or which
would be deemed to be controlling, controlled by or under common control
with the Primary Holder under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, any federal statute enacted
to take the place of either or both such statutes or any regulation
promulgated under either of such statutes or such successor statutes (an
'Affiliate') and (b) all shares of such stock owned of record or
beneficially by any person or entity acting in concert with the Primary
Holder and/or with an Affiliate of the Primary Holder. This Article
Twelfth shall not be altered, amended or repealed except by the
affirmative vote of the holders of not less than 66-2/3% of the stock of
the Corporation issued and outstanding having voting power, given at a
stockholders' meeting duly called for that purpose, upon a proposal
adopted by the Board of Directors.
THIRTEENTH: Board of Directors.
(a) Number, Election and Terms. The business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors consisting of not less than 11 nor more than 24 persons. The
exact number of directors within the minimum and maximum limitations
specified in the preceding sentence shall be fixed from time to time by
the Board of Directors pursuant to a resolution adopted by a majority of
the entire Board of Directors.
At the 1983 Annual Meeting of Stockholders, the directors shall
be divided into three classes, as nearly equal in number as possible,
with the term of office of the first class to expire at the 1984 annual
meeting of stockholders, the term of office of the second class to expire
at the 1985 annual meeting of stockholders and the term of office of the
third class to expire at the 1986 annual meeting of stockholders.
At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those whose
terms then expire shall be elected for a term of office expiring at the
third succeeding annual meeting of stockholders after their election.
(b) Newly Created Directorships and Vacancies. Subject to the
rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the directors
then in office. Directors so chosen shall hold office for a term expiring
at the annual meeting of stockholders at which the term of the class to
which they have been elected expires. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of
any incumbent director.
(c) Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire
Board of Directors, may be removed from office at any time, but only for
cause and only by the affirmative votes of the holders of at least 80% of
the voting power of all the shares of the Corporation entitled to vote
for the election of directors.
(d) Amendment, Repeal, Etc. Notwithstanding anything to the
contrary contained in this Restated Certificate of Incorporation, the
affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote for the election of
directors shall be required to amend, alter or repeal, or to adopt any
provision inconsistent with, this Article Thirteenth.
FOURTEENTH: Stockholder Action. Any action required or
permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in writing by such
stockholders. Special meetings of stockholders of the Corporation may be
called upon not less than 10 nor more than 60 days' written notice only
by the Board of Directors pursuant to a resolution approved by a majority
of the Board of Directors. Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of all of the
shares of the Corporation entitled to vote for the election of directors
shall be required to amend, alter or repeal, or to adopt any provision
inconsistent with, this Article Fourteenth.
FIFTEENTH: Elimination of Certain Liability of Directors. To
the fullest extent that the general corporate law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be
amended, permits the limitation or elimination of the liability of
directors, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. No amendment to or repeal of this Article
Fifteenth shall apply to or have any effect on liability or alleged
liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment or
repeal.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation,
which restates and integrates but does not further amend the Restated
Certificate of Incorporation of McDonald's Corporation, as heretofore
amended or supplemented, there being no discrepancy between such Restated
Certificate of Incorporation, as so amended and supplemented, and the
provisions hereof, and having been adopted in accordance with Section 245
of the Delaware General Corporation Law, has been executed by its
Vice President and attested by its Assistant Secretary, as of this
19th day of December, 1997.
McDONALD'S CORPORATION
By: /s/ Gloria Santona
------------------------
Vice President
ATTEST:
/s/ Joseph R. Thomas
-----------------------
Assistant Secretary